Freedom of expression: wave of social media regulation threatens access to information

Simon Fuller, IBA Managing EditorTuesday 15 September 2020

The law further requires the affected social networks to store the data of their Turkish users in Turkey, to be accessed by the authorities upon request.

It also introduces a new legal process, allowing for a court to order the removal of content deemed ‘offensive’, based on an application from one party alone. Sidika Baysal, Co-Chair of the IBA European Regional Forum and Managing Partner at B+B Law Office in Istanbul, fears the result will be further censorship. ‘The government, which doesn’t like being criticised, will ask courts to remove the content and the courts will decide to remove these content, without even listening to the other party,’ she says.

‘Turkish people are already afraid to share their own opinions on social media as they have examples [of others] who are being put on trial because of content they shared,’ says Baysal. ‘These changes have made people more worried, although the law actually regulates the social network providers, [more than] users.’

The law is needed, says the Turkish government, due to content on social media violating the personal rights of citizens, or else constituting hate crimes or ‘terrorist’ activities. According to Özlem Zengin, Group Deputy Chair of the ruling Justice and Development Party (AKP), ‘our first priority is never the closure of social media providers. We aim to end insults, bad language and harassment on social media.’

Many commentators believe the new law has been hastened through the legislative process because of insults directed at members of President Recep Tayyip Erdoğan’s family via social media.

Meanwhile, the Indian government’s banning of 59 apps in June, including that of popular social media platform TikTok, owned by Chinese tech company ByteDance, represents a form of social media regulation that’s driven at least partially by concerns about what happens to users’ data.

The Indian government cited the threat posed by the apps to the country’s ‘sovereignty and security’, alleging that they use and transfer data illegally. More apps with Chinese links were banned in early September.

The companies behind the affected apps – including TikTok and Chinese social media platform WeChat – insist they’ve complied with Indian law.

Sajai Singh, Co-Chair of the IBA Technology Law Committee and a partner at J Sagar Associates, says the reasons for the bans are not yet fully clear, but that India’s current political tension with China is perhaps one of the contributing factors.

Singh says that while the bans may be criticised, ‘India is also a party to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Both recognise the prime importance of privacy and data protection as a concept. If there is a threat that data may be misused, the Indian government is justified in implementing measures that it deems necessary in order to protect the fundamental rights of its citizens.’

The ban has nonetheless had an impact on users of the apps in India, particularly TikTok ‘celebrities’, for whom the social media platform has become a source of income as well as entertainment.

The need to protect access to social media goes beyond freedom of expression. In the context of the Covid-19 pandemic, social media often means an opportunity to find crucial health information. In Nigeria, ‘social media has been used to provide updates on the rise or decrease in the number of infected persons and communicate the measures taken by the government, NGOs and individuals’ during the pandemic, explains Osayaba Giwa-Osagie, Founding Partner of Giwa-Osagie & Co.

But particularly in Africa, a common trend is for governments to justify the imposition of further regulation on social media platforms by the need to prevent the dissemination of disinformation. In Nigeria for example, the Protection from Internet Falsehoods and Manipulation and Other Related Matters Bill 2019 is under consideration in the country’s senate. As its name suggests, the Bill aims to restrict the publication and distribution of false information.

Dr Babatunde Ajibade is Senior Vice-Chair of the IBA African Regional Forum and Managing Partner of SPA Ajibade & Co. He says that many see the Bill as ‘as an attempt by the government to place limitations on the freedom of expression of its citizens which is a fundamental human right enshrined in the constitution of Nigeria.’

Meanwhile, a communique released following the Southern African Development Community (SADC) annual summit in August announced that the bloc – which unites 16 countries – intends to ‘take pre-emptive measures against external interference, impact of fake news and abuse of social media particularly in electoral processes.’

It’s not yet clear what will result from the SADC’s communique, but Nompilo Simanje, Legal Officer at the Media Institute of Southern Africa, suggests it’s possible that SADC Member States will rely on legislation that infringes on citizens’ exercise of digital rights. ‘This stems from the fact that in general, the states have a very biased view towards social media use, as they are viewed as platforms promoting barbaric behaviour, public disorder and in some instances a threat to national security,’ says Simanje. ‘The mechanisms that they put into place therefore are influenced by that approach.’

Simanje adds that legislation tackling disinformation needs to be properly framed. ‘The laws should clearly define what false news is and require proof of an intention to spread false information or an intention to deliberately mislead.’

According to Simanje, SADC governments are also concerned about the way in which social media can play a part in popular uprisings, as seen during the Arab Spring.

‘These restrictions are also ways of hindering citizens’ access to information, especially in instances where issues of bad governance are being raised,’ Simanje adds.

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