Can A Public Officer In Nigeria Block You On Social Media (Internet), While Discharging His Duties As A Public Officer?

BACKGROUND

As the world continues to advance technologically, the internet and social media has become the most used means of communication, used to share opinions and perspectives on issues of concern without the fear of physical attack and threat while giving credit to how fast and far information could be passed. The Internet and Social Media have become vital communications tools through which individuals can exercise their right to freedom of expression and exchange information and ideas on a Public platform; it has become a platform by which citizens air their opinion, grievances, and unhappiness on the conduct of governance and the activities of public officials who they may not have access to due to protocols and policies. The Interpretation Act defines a public office holder as a person who discharges any duty, in the discharge of which the public is interested, more clearly if he is paid out of funds provided by the public,[1] in Chief John Eze v. Dr. Cosmas I. Okechuckwu[2] the court opined that a public officer is a holder of a public office.

In a constitutional democracy, like Nigeria the right to freedom of expression is a fundamental human right guaranteed by the constitution and other international frameworks in section 39 of 1999 Constitution of the Federal Republic of Nigeria as amended,[3] Article 19 of the Universal Declaration on Human Rights[4] and Article 19 on the International Covenant on Civil and Political Rights.[5] Sec 39 (1) CFRN provides:

Every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference.

Sec 39 (2) CFRN[6] allows every person to own, establish and operate any medium for the dissemination of information, ideas, and opinions, however, restriction is placed on owning and establishing or operating a television and wireless broadcasting station for any purpose by persons other than the Government of the Federation or a State or any other person or body authorized by the President on the fulfillment of conditions laid down by an Act of the National Assembly. The freedom of expression even though it is fundamental is not absolute and carries with it special duties and responsibilities therefore it may be subject to certain restrictions and regulations provided by law. Social media come with potential problems, as well as gains, one important issue is how to ensure that Internet regulations do not strangle freedom of expression and how to ensure individuals do not abused this rights as well. In Nigeria, the authorities have continued to propose laws that regulate social media and restrict the right to freedom of expression, access to information, and media freedom, including through legislative bills popularly known as the “The Social Media Bill” formally known as “The Frivolous Petition (Prohibition, etc.) Bill 2015” which died as a result of criticism and outcry from the masses and Civil Society Organization and other laws like The Cybercrime Act, 2015,[7] Terrorism Prevention Act (TPA) 2011[8] as amended and sections, 114, 392, and 3999, 417 and 418 of the penal code Act 1960[9] have been relied on by public officials to restrict and regulate the right to freedom of expression.

Some states have adopted Internet blocking, filtering, or takedown procedures or Internet surveillance (including compulsory data retention), or even shut down national networks, in an attempt to regulate or restrain users’ freedoms. And in many other democratic countries, blocking is nowadays frequently used to prevent specific content from reaching a final user or to prevent certain content put out by the user from reaching other users which can be individuals, public officials, organizations, and other Public bodies.[10]

Can A Public Official In Nigeria Block A Citizen On Social Media While Discharging His Function As a Public Officer.

It is now common practice for public officials to make major policies announcement and share pieces of information on public issues relating to their offices or governance on Twitter and other social media platforms, this has allowed them to better engage the public, inviting public discourse and debate with the benefit of bringing the government closer to the people and facilitating easy communication and gives individuals the platform to voice their concerns, criticism, and frustration, which raises important questions as to who can view this announcement/information? Who can comment on them? And what happens if certain individuals are blocked from accessing and commenting on important social media feed? Since most social media feed, also gives public officers and agencies the ability to block members of the public i.e. to exclude such individuals from receiving directly such information and airing their views in the interactive component of the account such as the comment section.[11]

When public officials block individuals based on their viewpoint first it denies their right to access to information that is generally made available to the public and secondly it violates their freedom of expression by preventing them from speaking on a platform that has been generally open for public communication with the government through its officials. This is protected by the Constitution of the United States Amendment 1 (First Amendment),[12] in the recent case of Campbell v. Reisch,[13] where a Twitter account belonging to Missouri state representative Cheri Reisch blocked her constituent, Mike Campbell after retweeting a comment critical of her, the Eighth Circuit Court Joined other Federal Courts in acknowledging the public has the right to access official communication on social media, even if it’s a private account so long that account is used for a public purpose by the public official, the decision of the Second Circuit court of appeals in the case of Knight First Amendment Institute v. Trump,[14] on the use of social media also held that even government officials’ nominal private accounts can be used for official purposes, in which, it will violate the first amendment for these accounts to block members of the public based on their viewpoint.[15]

In Nigeria, there are currently no laws that expressly relate to blocking a member of the public by a public official while carrying out his duties, however, it is the general duty of the public official to maintain peace and order, section 45 CFRN[16] allows the right to freedom of expression to be restricted in the interest of public safety, public order, public morality, and public health or for the protection of the right and freedom of other persons, therefore creating room for, libel, slander, and hate speech. Therefore where a comment is likely to threaten public peace, public order and incite violence, or violates the right of other persons and the right of the public official when he acts in a personal capacity, the Public Officer can delete or obstruct such information from being published. However, Part 1 of the first schedule of the 1999 constitution on the Code of Conduct for Public Officers in section 1,[17] provides that a Public Officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities. Section 24 (1) and (2) of the Cybercrime Prevention And Prohibition Act[18] provides that no person shall send or cause to be sent a message through computer or other networks that are gross, insulting or false, to annoy, danger, obstruct, insult, cause criminal intimidation, hatred, ill will or needless anxiety to another shall be liable on conviction to a fine of not me than 7millin or imprisonment of 3years or both. And the Electoral Act also prevents political campaigns or slogans that are tainted with abusive language directly or indirectly, likely to injure religious, ethnic, tribal, or sectional feelings. However nothing in this law provides expressly that a public official can block a citizen in his constituency based on opinions, expressions of frustration, and criticisms by citizens towards the public officers in his official capacity, since Nigeria is a democratic system.

It is noteworthy, that Public officials are still entitled to the right to privacy, creating some gray areas. So if a public official is using an account based on their capacity for personal purposes such as photos of family or personal interest, then they are entitled to the right to privacy under section 37 of the 1999 CFRN[19] and consequently the right to Block or restrict anybody on their space, but where they act in their capacity as public officials carrying out their official duties, they cannot block a citizens from accessing, commenting, and sharing their views regarding a public matter in a public forum or a personal forum used for official purposes, as it violates the citizen’s right to freedom of expression and access to public information.

Whether It Can Enforced

Where a citizen is blocked by a public official in a public forum or a personal forum while carrying out his duties as a public officer, such a citizen cannot directly sue the public officials on the grounds of blocking him, since there are no laws expressly providing for that, however, a citizen can sue such public officials for the violation of his human right specifically the right to freedom of expression and information under section 39 of CFRN[20] at any time; even though the Public officers protection act provides in section 2 that actions brought against a public official must be brought within 3 months, The Fundamental Right Enforcement Procedure Rules 2009[21] in Order III Rule 1 states that the procedure for enforcing fundament right shall not be affected by any statutes of limitation whatsoever, allowing a victim to enforce his right anytime. Order II Rule 1 of the Fundamental Rights Enforcement Rules[22] provides that any person who alleges that any of the fundamental rights provided for in Chapter IV of the 1999 Constitution or African Charter on Human and people’s Rights (Rectification and enforcement) Act and to which he is entitled has been, is likely to be infringed, may apply to the court in the state where the infringement occur or is likely to occur for redress. Section 46 of the 1999 CFRN[23] provides that a person seeking to enforce his fundamental right violated in a state may apply to the high court in that state for redress, this section gives original jurisdiction to the High Court to hear any matter made according to this section, where it involves a public official in a federal level the federal High have jurisdiction. A lawsuit in respect to this can be instituted by anyone acting in his interest, acting on behalf of another, as a member of an interest group, anyone acting in the public interest or an association acting in the interest of its members.[24]

Secondly when a person whose rights have been infringed does not wish to go to court, that person can explore the options of petition written to the Human Rights Commission by way of the complaint, the African Union, or the United Nations requesting interventions, letters can also be written to authorities within the country or a state to bring to their knowledge a violation going on within their territory e.g. a letter can be written to the National Assembly, the President, the Attorney General or Governor. Lastly, parties can also use social media advocacy and campaign through human right NGOs to ensure the enforcement of their right. [25]

Conclusion

Even though there are no laws in Nigeria expressly providing as to whether a public officials can block a citizen on social media while carrying out his official responsibilities, a public official cannot block a citizens from accessing information and commenting on public forum where public information published, even where it is a private forum used for official purpose, as it will violates the citizens fundamental right to freedom of expression and information by preventing them from accessing information and speaking on a platform that has been generally open for public communication with the government through its officials except where such comments or the act of the citizen would disrupt public safety, public order, public morality, and public health or for the protection of the right and freedom of other persons.

[1] (2004) Interpretations Act, Cap 123, LFN 2004

[2] (1998) 5NWLR (Pt. 58)

[3] (1999) C.F.R.N as amended, Cap.23 L.F.N 2004

[4] UN General Assembly,(1948) pp.art.21.3

[5] African Union (1981) CAB/LEG/67/3 rev, 5,21 I.L.M. 58

[6] Ibid

[7] Cybercrimes (prohibition, prevention, etc) Act 2015. Revised 2nd

[8] Terrorism prevention (Freezing of International Terrorist Funds and other Related Measures ) Regulation 2013

[9] CAP P3,LFN 2004

[10]

[11] HOUSTON Davidson, Can Government Officials Block You on Social Media? A New Decision Makes the Law Murkier, But Users Still Have Substantial Rights (February 2, 2021), The Electronic Frontier Foundation. https://www.eff.org/deeplinks/2021/02/can-government-officials-block-you-social-media-new-decision-makes-law-murkier

[12] The Constitution of the United States, Amendment 1

[13] (8th Cir. 2021) No. 19-2994

[14] (2019) No. 1:17-cv-5205 (S.D.N.Y.), No. 18-1691 (2d Cir.), No. 20-197 (S. Ct.).

[15] Ibid (n.11)

[16] Supra (n.3)

[17] Ibid (n.3)

[18] Supra (n.7)

[19] Supra (n.3)

[20] Ibid (n. 19)

[21] The Fundamental Right Enforcement Procedure Rules 2009

[22] Ibid (n.21)

[23] Ibid (n.19)