A rights-respecting approach to preventing online harms, protecting online expression and ensuring effective platform governance in Nigeria and South Africa

Abstract

This thesis examines how the prevention of online harms and protection of online expression can be carried out in Nigeria and South Africa through a rights-respecting approach. It uses postcolonial legal theory to argue that the concepts of expression in African indigenous societies are close enough to the normative principles that underpin the right to freedom of expression online. However, despite these conceptions, the right is unprotected in African countries and one of the reasons for this is the continuing impacts of colonial-era legal provisions on the right to freedom of expression. These provisions, found in criminal and penal codes of most former British colonies, provide for various offences like ‘publication of false information,’ ‘sedition,’ ‘abuse or insulting language to religion or person,’ ‘criminal defamation’ and others.

This thesis argues that these provisions have negatively influenced cybercrime and electronic communications laws in these countries. These colonial-era codes and laws make regulating online harms and protection of online expression on social media platforms particularly difficult. It argues that this difficulty may be attributed to a new form of digital colonialism, the continued use of colonial laws to violate expression on social media platforms in these African countries. It also argues that for these harms to be prevented and for online expression to be protected on social media platforms, it is necessary for lawmakers to replace these holdovers of colonial-era legal regimes with a rights-respecting approach to platform governance.

Focusing on Nigeria and South Africa, this thesis proposes that such an approach must be anchored to international human rights law, and its governance must be built on a dynamic regulatory matrix that allows for constant communication, openness and multistakeholderism. For actors in Nigeria and South Africa to prevent these harms and protect online expression, they must rethink their idea of governance starting with legal reforms. This includes repeal and amendment of relevant laws that violate the right to freedom of expression online and enactment of laws that prevent online harms and protect online expression. These laws must be creatively designed, normatively sound and generative in their processes.

For these laws to be creatively designed, proximate actors must include as many stakeholders as possible. This means that the rules that govern online expression must be driven by multistakeholderism, that is meaningful engagements among specific actors like governments, national human rights institutions, social media platforms, the United Nations and African Union human rights systems, international non-governmental organisations, local civil society and academia. This thesis also argues that for these laws to be normatively sound, they must be anchored to international human rights standards. This anchoring means that these laws must be rights-respecting. It also notes that the processes involved in coming up with new laws must be incremental – they should first be developed into soft laws before they are enacted as hard laws.