Dr Akinola Akintayo
*Introduction
Help me! Help me! Help me! Help me! He dey carry me dey go where I no know. ’
Most readers will remember a viral video of a policewoman shouting the above words in a Tricycle (Keke) while struggling with the driver. The video trended widely on social media between 2021/2022 and has been made into hit songs by popular Nigerian artists. The words have also been adapted into praise and worship songs in churches.
The video was most probably shot and posted on social media by one of the passengers in the Keke. This scenario underlined the changing nature of news gathering and dissemination powered by today’s emerging technologies.
Enabled by camera phones and wearable electronic gadgets; audio and audio-visual recordings and sharing of all manner of news and events occurring in private and public places have now become the norm.
Every citizen with a camera-enabled smartphone and other digital devices has become the proverbial ‘lonely bystander’ who gathers and disseminates news and events. Nowadays, most news and events are seen first on social media platforms and blogs as disseminated by private persons before they are reported on traditional media platforms.
Recordings shared range from the sombre, the educative, the entertaining to the comical and the hilarious. Some of the recordings shared have helped in exposing corruption and foster accountability and good governance.
Others, however, had the potential of exposing citizens to ridicule and indignity while tending towards the offensive and undesirable. The growing popularity of this kind of news reporting was highlighted during the recent fuel and naira notes scarcity when social medial platforms were agog with video recordings graphically showing the reactions of the populace and driving the impact of the scarcity sharply home.
While these technology-enabled developments have liberalized news reporting, it has also created a host of new legal and ethical questions around privacy, data protection, and freedom of expression. This article explores and articulates the law regarding the right of private persons to record and share news and events in public places in Nigeria, including relevant legislation, case law, and the broader cultural and political context to educate the general public as well as identify limitations, gaps, prospects and challenges to the exercise of the right in Nigeria.
*Scope and parameters of a private person’s right to record and share news and events in public places
Rights implicated by recording and sharing of events occurring in public spaces by private persons include the rights to privacy, data protection, and freedom of expression. The rights are discussed seriatim below.
*Privacy
Privacy is a contested concept lacking in precise meaning or content. Thus, there are many approaches to ascertaining or determining the meaning and contents of privacy in specific cases. I however find the continuum of privacy interests’ approach of the South African Constitutional Court formulated by Ackermann J in Bernstein v Bester NO the most useful.
The approach is hinged on the legitimate expectation of privacy concept. The concept has two components viz: (i) a subjective expectation of privacy i.e what feels private; and, (ii) objective reasonableness of the subjective expectation of privacy i.e subjective expectation of privacy considered objectively reasonable by societal standards. In determining what is objectively reasonable, priority is given to the ‘inner sanctum’ or truly personal realm of a person’s life.
The expectation of privacy in the inner sanctum or truly personal realm is often objectively reasonable. Thus, privacy protection is strongest in the truly personal realm e.g in bedrooms, marriage, procreation, sexual orientation, etc.
However, the more a person moves into the community and interacts in the public domain the more diluted his or her legitimate expectation of privacy with the consequent reduction in the reasonableness of privacy expectations. That is not to say that a person loses his/her right to privacy in the public domain or that privacy is always available in the inner sanctum.
Thus, while a person in a public space does not lose his or her right to privacy, the protection available is significantly diluted because it is to be exercised with due regard to the rights of others. Consequently, flowing from their freedom of expression, other persons interacting with the public domain have a right to capture and document the public domain. Thus, documentation of public spaces by audio and/or audio-visual means is not, as such, a violation of the privacy of any person even if any person is recorded in the process.
However, when a recording or documentation of a person is made in a public space, three considerations determine whether the recording or sharing of the recording will subsequently amount to a violation of the right to privacy or not. The first is whether the permanent or systematic record will result from the recordings.
Where the recording is going to form part of a permanent or systematic record(s) or documentation of events, the storage and subsequent processing of the recording may violate privacy unless sanctioned by law which is justifiable and necessary in a democratic society. The second is whether there are targeted recordings of the particular individual(s).
Where this is the case, the recording will violate the privacy of the individual(s) targeted except if there is consent or the recording is otherwise justified by law that is necessary and justifiable in a democratic society. The third is where the material(s) recorded is subsequently processed, published, or disseminated in a way or degree beyond that contemplated or foreseeable by the person(s) recorded.
For instance, if the recorded material was subsequently disseminated or viewed by persons which far exceeded exposure to passers-by present at the scene of the recording or beyond normal observations in the circumstance or otherwise used in a way(s) beyond that contemplated or foreseen by the person recorded.
The application of the above principles is well illustrated in Peck v the United Kingdom. In Peck, the applicant suffered from depression and attempted to commit suicide. He was recorded by the close-circuit cameras (CCTVs) installed on the streets. His movement was brought to the attention of the police in the area and the suicide was prevented.
The recordings were later posted by the police in newspaper articles and later on TV shows to underline the positive impacts of CCTVs. The applicant sued for the violation of his privacy by the police. The Court held that: video or photographic monitoring of individuals in public spaces is not a violation of privacy as such.
However, the systematic and permanent record ensuing from the recordings in the particular instance violated the applicant’s privacy. The Court also held that the applicant could not have contemplated or foreseen that his activities on the day in question would be disseminated to such a large audience.
Finally, the applicant on the day in question was not on a public street to participate in a public event, his consent was therefore required before broadcasting the video. Alternatively, his identity could have been masked through technical means.
Thus, while a person is within his or her rights to document or record public spaces, persons and things that happen to come into view; subsequent storage, usage, dissemination, etc. of the resulting recordings beyond the manner and degree contemplated or foreseeable by the person(s) recorded may amount to a violation of the right to privacy.
*Data protection
Data protection does not suffer from the vagueness and controversy inherent in the concept of privacy. The principal objectives of data protection are to reconcile respect for privacy and the protection of personal data of individuals with the free flow of personal data to foster technological innovation and development. Data protection is derived from the broader concept of privacy. However, data protection is not the same as privacy.
The concept differs from privacy in the following significant ways: Firstly, data protection has a more specific and at the same time broader focus than privacy.
Secondly, data protection regulates the collection, processing, and use of personal data and does not deal with other aspects of the private life of a person.
Thirdly, data protection aims to facilitate the free flow of personal data in a manner compatible with the rights and dignity of the human person while privacy has a broader concern.
Fourthly, while data protection is the subject of specific data protection laws, privacy is often a matter of constitutional rights, although data protection is also increasingly becoming the subject of constitutional rights.
In terms of nomenclature, data protection, information privacy, and data privacy are terms referring to similar concepts in different jurisdictions. Data protection is a term of art in Europe. Information privacy is popular in the United States and Canada while Data Privacy is a new term that recognises the nexus between privacy and data protection and seeks to combine the focus of the two earlier concepts.
The recognition of the importance of data protection in the current Fourth Industrial Revolution has spawned data protection frameworks at the international, regional, sub-regional, and domestic levels across the world.
At the international level, the Council of Europe Convention 108, the Convention for the Protection of Individuals concerning Automatic Processing of Personal Data, is the first legally binding international data protection treaty.
The Convention opened for signature on 28 January 1981. It is open to any country desirous of acceding to the Convention. Parties to the Convention are obliged to take necessary steps in their local laws to apply the principles of the Convention in their territory to ensure the protection of the fundamental rights of all individuals for the processing of personal data.
The Convention was modernised in 2018 (Convention 108+) to take account of new challenges in the digital era and facilitate safer exchanges of personal data at the international level as well as strengthen the effective implementation of the Convention.
At the regional level, the European Union (EU) General Data Protection Regulation (GDPR) is the legally binding data protection framework within the EU. It was adopted on 14 April 2016. It regulates the collection, processing, use, and transfer of personal data in the EU.
It has extra-territorial applications and is reputed to be the most influential privacy and data protection framework in the world. It is widely regarded as the data protection gold standard from which other frameworks across the world draw inspiration.
At the African regional level, the African Union Convention on Cybersecurity and Personal Data Protection (the Malabo Convention) is the relevant framework. The Convention was adopted in June 2014. It is however yet to come into force as it requires 15 ratifications to activate. The required numbers of ratifications are yet to be completed.
The Malabo Convention combined electronic transactions, data protection, and cyber security issues in its provisions. The Convention obliges state parties to establish legal frameworks to ensure that the processing of data respects the right to privacy of persons and sanction violations, etc.
To facilitate the implementation of the Convention, the African Union asked the Internet Society in conjunction with global and regional experts and other stakeholders to develop Privacy and Personal Data Protection Guidelines for Africa.
At the sub-regional level, the ECOWAS Supplementary Act on Personal Data Protection (ECOWAS Supplementary Act) was adopted by the Heads of State and Government of ECOWAS in February 2010.
The Supplementary Act is a binding data protection framework within the ECOWAS sub-region without the need for ratification. All that is required is domestication and incorporation of the framework into domestic law.
The Supplementary Act obliges ECOWAS member states to ‘establish a legal framework for the protection for the privacy of data in terms of its collection, processing, transmission, storage, and use of personal data without prejudice to the general interest of the State’.
At the domestic level, the Nigeria Data Protection Regulation, 2019 (NDPR) is the main data protection framework in Nigeria. The NDPR was issued by the National Information Technology Development Agency (NITDA) according to its establishment Act in 2019. The NDPR contains rules for the legal processing of data, the rights of data subjects, and sanctions for failure to observe regulatory requirements. Although the legal foundation, scope, and adequacy of the NDPR are subject to controversy, it is however the de facto data protection framework in Nigeria at the moment.
The different data protection norms examined above provide rules for the processing of personal data. They also stipulate legal bases for the processing of personal data. The different data protection norms framed the meaning of data processing so widely that it seems to encompass any dealing with personal data. The ECOWAS Supplementary Act, for instance, defined data processing as:
Any operation or set of operations carried out or not, with the assistance of processes that may or may not be automated and applied to data, such as obtaining, using, recording, organisation, preservation, adaptation, alteration, retrieval, saving, copying, consultation, utilisation, disclosure by transmission, dissemination or otherwise, making available, alignment or combination as well as blocking, encryption, erasure or destruction of personal data.
From the above, it does appear that any dealing with personal data will amount to data processing. The photographing, audio and audio-visual recording and sharing of news and events occurring in public places by citizens’ journalists qualify as the processing of personal data if it records or captures private persons who happened to be in a public place at the time.
Under the NDPR frameworks, for instance, processing personal data is illegal unless it comes within allowable exceptions under the frameworks. The allowable exceptions are (i) the processing of personal data to further national security, public health, safety, and order by government agencies and authorities; (ii) to aid investigation of crimes; (iii) the collection and processing of anonymised data; and, (iv) processing of personal data in personal or household activities which have no connection to a professional or commercial activity.
Where the exceptions do not apply, there are five circumstances under which personal data can be lawfully processed under the NDPR. These are: (i) where the data subject has given consent; (ii) where the processing of the data is necessary to the performance of a contract to which the data subject is a party; (iii) where processing is necessary to comply with a legal obligation of the data controller; (iv) where the processing is necessary to protect the vital interests of the data subject or another natural person; (v) where processing is necessary for the public interest.
From the above, consent and the processing of personal data in personal or household activities are the two items head relevant to the present inquiry. Of course, where a person consents to audio or audio-visual recording and sharing of his or her images, no issue(s) arises under the NDPR.
However, where there is no consent and the processing of personal data in the particular instance falls outside the other lawful basis for the processing of personal data mentioned above, the other exception that is potentially open to a private person is the processing of personal data in personal or household activities.
Although that exception is not provided for in the NDPR itself, it is part of the exceptions to the application of the NDPR recognized by the NDPR Implementation Framework made by NITDA in 2020 (Implementation Framework) to clarify the provisions of the NDPR that need further clarity or context. The Implementation Framework excludes personal or household activities with no connection to a professional or commercial activity from the ambit of or application of the NDPR.
The personal or household activities exception under the Implementation Framework is borrowed from Article 2 of the GDPR. Under Article 2 of the GDPR, processing personal data in the course of purely personal or household activity like taking or sharing personal photos, blogging, posting on social media, etc, is outside the scope of the GDPR.
It has, however, been held that the publication of a minor’s photos taken by the grandmother on social media without the consent of the parents in circumstances where the social media accounts of the grandmother are not proven to be protected from public access does not come within the exception.
This decision implies that a private person who in the course of personal or domestic activity e.g. taking selfies, etc. in a public place captured or recorded a third party will be well within his or her right to record within the personal or domestic activity exception.
The resulting recordings cannot however be shared or disseminated beyond the personal or household sphere without the consent of the third party(ies) concerned. This conclusion tallies with the position of the law of privacy on the scope of the right to record and share news and events occurring in public places discussed above which require that recordings cannot be disseminated or published beyond the manner and degree contemplated or foreseeable by the person(s) recorded.
*Freedom of expression
Freedom of expression is one of the basic fundamental human rights protected by law at the international, regional, and national levels. The Universal Declaration of Human Rights, 1948 (UDHR); the International Covenant on Civil and Political Rights, 1966 (ICCPR),
the European Convention on Human Rights, 1950 (ECHR); the African Charter on Human and Peoples’ Rights, 1981 (African Charter); and, the Constitution of the Federal Republic of Nigeria, 1999; all provide for the right to freedom of expression.
Many countries have also ratified thematic human rights instruments which provide for the right to freedom of expression. Freedom of expression may therefore be seen as an evolving norm of customary international law.
This is flowing from the overwhelming rate of states’ ratifications of treaties containing freedom of expression provisions, a plethora of freedom of expression soft laws, robust jurisprudence, and practices of states.
Freedom of opinion and expression is a right that has both a personal and a social dimension. It is viewed as a necessary element for a person’s complete development, a necessity for any community, and the lifeblood of every free and democratic society.
In Kauesa v Minister of Home Affairs & Ors, the Supreme Court of Namibia held that free expression is necessary for the maintenance of a democratic state; that citizens must be free to speak, criticize, and praise and that muted silence is not an ingredient of democracy because the exchange of ideas is essential to the development of democracy.
The right to freedom of expression extends beyond the frontiers of oral expression. It covers information and ideas of all kinds in writing or print, in the form of art, or through any other media of a person’s choice.
It protects all forms of communication, including political discourse, commentary on one’s own and public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expressions, teaching, and religious discourse.
Freedom of expression is crucial to the realization of other rights as well. Freedom of assembly and association, and the right to vote are dependent on freedom of expression for effect and realization. Nonetheless, the right to freedom of expression is not absolute.
Some limitations must be necessary, proportionate, and justifiable in a democratic society. Under international and domestic laws, states are empowered to impose limitations on freedom of expression if the limitation is in furtherance of objectives of national security, public order, public health, and public morals.
To pass human rights muster, however, limitations of fundamental rights must ‘…be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest protected’.
Even then, the principle of proportionality must take cognisance of the form of expression at issue and the means of its dissemination. In Bodrozic v Serbia and Montenegro, for instance, the UN Human Rights Committee observed that the ICCPR gives greater weight to freedom of expression when it comes to discussions about public figures and political figures in democratic societies. This decision is similar to the decision of the African Court of Human Rights in Konate v Burkina Faso.
In Sunday Times (No 1) v United Kingdom, the European Court of Human Rights laid down the requirements for determining when an interference with the right to freedom of expression is necessary for a democratic society as follows: “Whether the ‘interference’ complained of corresponded with a ‘pressing social need’, whether the reasons adduced by the national authorities to justify the interference were ‘relevant and sufficient’ and whether the measure taken was ‘‘proportionate to the legitimate aims pursued.”
Thus, the Rabat Plan of Action recommends that laws restricting freedom of expression must pass the three-part test of legality, proportionality, and necessity. It also recommends six factors for national courts to consider when assessing whether a particular speech ought to be prohibited as incitement thus: the context, speaker, intent, content or form, the extent of the speech, and the likelihood of inciting hatred. The right to freedom of expression and information must be effectively protected if democracy is to advance and if diversity and tolerance are to be encouraged.
The right to record and share news and events in public places is part and parcel of the right to freedom of expression. The nexus between the right to record and share and freedom of expression was explicitly made in Glik v. Cunniffe where the Court pronounces thus:
The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
Consequently, the United States courts have vindicated a general right of private citizens to record matters of public interest occurring in public places under the prism of the First Amendment.
A specie of the right of private citizens to record matters of public interest is the right to record police officers/public officials in the course of their official duties in public places. In Branzburg v. Hayes, the United States Supreme Court held that the First Amendment guarantee of freedom of speech and press in its traditional and historical sense is the right of the lonely pamphleteer who employed carbon paper just as much as that of large corporations and institutional press with latest photocomposition methods. According to the Court, ‘[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’
The ‘lonely pamphleteer’ metaphor in Branzburg was replaced with the ‘lonely bystander’ metaphor in Glik v. Cunniffe by the U.S. Court of Appeals for the First Circuit 2011. The Court held in Gilk that there is an established First Amendment right to film police officers in the conduct of official business in a public space.
The Court held further that guaranteeing the public’s right to gather information about government officials aids in the uncovering of abuses and has a salutary effect on governmental function more generally.
The Court also correctly notes that the line between private citizens and journalists has become very difficult to draw in contemporary times because of the changes in technology and society. The Court concluded that the First Amendment right to film police officers performing official functions is not without limitation. It is subject to reasonable time, place, and manner restrictions. For instance, the right may not be exercised in an unreasonable manner or in a way(s) that will interfere with or impair the due performance of police functions.
The right to record police officers in the course of official duties is protected as a corollary of the right to share or disseminate the resulting recording. In American Civil Liberties Union of Illinois V Anita Alvarez, the defendant’s state attorney argued that to record police officers while openly performing their functions in a public place is wholly unprotected.
In rejecting that argument, the United States Court of Appeals for the Seventh Circuit held that the right to record public officials is included in the First Amendment freedom of speech and the press as incidental to the right to publish or disseminate the resulting recording.
According to the Court, the right to disseminate or publish the resulting recordings will become ineffective or insecure in the absence of the prior right to record. Thus, the principal right protected is the right to share or disseminate the resulting recording.
The right to record is protected as an ancillary and necessary right to the right to share or disseminate to ensure the sustenance and effectiveness of the right to share or disseminate. There is thus a constitutional right of citizens under the First Amendment to record matters of public interest generally as well as a right to record police officers in the course of their official duties in public places. This is circumscribed only by reasonable time, place, and manner restrictions as discussed above.
The right of private persons to record and share news and events occurring in public places in Nigeria
Nigeria’s constitutional and human rights regime is largely borrowed from the United States of America. Consequently, the interpretation of relevant parts of the United States Constitution has a persuasive effect and can serve as a guide to the meaning and contents of the Nigerian Constitution. Thus, although the texts of the First Amendment of the United States Constitution are not identical to section 39 freedom of expression provisions of the Constitution of the Federal Republic of Nigeria, 1999 (the 1999 Constitution), the texts and tenor of the provisions contain similar features.
It follows, therefore, that a right to record and document public spaces generally and a special right to record and disseminate recordings of police officers in the course of official duties may be founded upon section 39 of the 1999 Constitution.
Several cases touching directly on the right to record and share recordings of law enforcement officers in the course of official duties in public places have come before Nigerian courts. Sadly, the courts have not risen to the occasion to progressively and proactively interpret section 39 of the Constitution in line with best practices of which the United States is an example.
Cases that came before the courts have either been dismissed on the technical ground or interpreted in a too-restrictive manner. This may have been due to a lack of awareness of developments in that area of the law or conservativeness of the courts or both.
In Diana Ele Uloko v. Inspector General of Police, for instance, the applicant, her sister, and others were participating in the 2020 End SARS protest in Abuja. The applicant alleged that while she was recording and posting the peaceful protest on her social medial handle with her Samsung phone, the police came to disrupt the protest. She claimed she and her sister attempted to run away but were ambushed by the police.
The applicant alleged that the police rough-handled and assaulted her sister in the process of arresting her and when the police realized she was recording the assault they pounced on her as well, beat her up, and seized and broke her phone.
She brought an action against the police before the Federal High Court, Abuja Division, for the assault, intimidation, harassment, and destruction of her phone, etc. The principal issue the applicant raised before the court was that the activities of the police violated her freedom of expression under section 39 of the Constitution.
In resolving the issues, the Court sidestepped the freedom of expression component of the claim and focused on the ancillary issues. According to the Court: ‘Admittedly, the Applicant has raised a constitutional question which in my humble opinion, touches on alleged harassment, intimidation, threatening, physical assault and damage to her mobile phone suffered at the hands of officers of the Respondent on 11/10/2020 during the End SARS protest in Abuja’.
Thus, the Court left out the violation of section 39 which was the main claim of the Applicant before the Court. This summation and analysis of the Applicant’s claims by the Court affected the Court’s eventual decision.
Thus, even though the suit was undefended by the Respondent, the Court held that the Applicant has not furnished sufficient evidence for the claims to succeed because the Applicant’s case must succeed or fall on its strength and not on the strength or weakness of the defendant’s case.
The Court consequently struck out the Applicant’s case. Thus, the Court missed a golden opportunity to pronounce upon the nexus between freedom of expression and the recording and sharing of news and events occurring in public places by private persons. We hope opportunities will again present themselves in the future and that the courts will seize those opportunities to redeem themselves.
The right to record and share news and events occurring in public spaces, like most other freedoms, can be put to both noble and ignoble uses. Some of the ignoble end the right can be deployed includes spreading disinformation/fake news, propagating hate speech, injuring the reputation and dignity of others, maliciously exciting discontent, and disaffection among the citizens and/or against the government, etc. To address the challenges posed by the negative use of the right, there are existing laws in the statute books as well as new ones that have been enacted to counter this. A perusal of the laws however revealed that most fall short of international human rights standards subscribed to by Nigeria for the limitation of the right to freedom of expression.
The second part of this essay takes up this issue by identifying and examining the different laws involved and where and how they fall short of standards. The reforms needed to make the laws compliant with international human rights standards will also be discussed.
*Conclusion
The essay examined the evolving right of private persons to record and share news and events occurring in public places and its different dimensions in Nigeria. The scope, parameters, and limitations of the rights vis-à-vis the rights to privacy and data protection in Nigeria are also examined.
The essay finds that the right to record and share is part and parcel of the right to freedom of expression. It also finds that although private persons have a right to record and share news and events in furtherance of their rights to record matters of public interest occurring in public spaces; and in more limited instances, in furtherance of their right to process personal data in personal and domestic activities, the rights to privacy and data protection of others people present in the public spaces circumscribed the right of private persons to record and share news and events occurring in public places in significant ways.
Dr Akinola Akintayo is a privacy and emerging technologies expert and legal consultant at the Faculty of Law, University of Lagos, Akoka-Lagos.
