The terms “nudes”, “photos”, “videos”, “social media” and “the right to privacy” intertwined in one sentence seem to be a paradox.
It has been argued by many that the minute you click the “I have read and agree to your terms and conditions” box (most of which more than 90 per cent of us do not read) on any social media application, you have lost your right to privacy.
This is not entirely true especially as it relates to images or videos which were not posted by the victim or those not authorised to be posted.
The interconnection between privacy and the digital space began to garner a lot of attention around the world after the ‘celebrity’ case of Sara Cox v. MGN Ltd  EWHC 1235 (QB).
The facts of this case were such that celebrity radio disc jockey, Sara Cox, sued a newspaper organization, The People. The People had printed nude photographs of her taken while on Sara Cox was on honeymoon.
Nigeria has not been excluded from the rancour of nudes, images or videos posted/re-posted willingly and unwillingly on the internet.
The fact that the Nigerian government is beginning to take note of the regulation of social media on its cyberspace can be seen in the controversial “Anti- Social Media Bill” sponsored by Senator Bala Ibn Na’allah of the Kogi South in 2015.
Many technology and legal activists fought against the bill in light of legal issues such as infringement of privacy online and that it prevented freedom of expression so that it became the subject of a heated debate until the Upper Chamber finally threw out the controversial bill, in commendable deference to public opinion.
- Without diverting into the morality or intention of nudes or videos posted on social media, one important question, especially if you are in Nigeria, is – Does the right to privacy cover the cyberspace?
Of course, it does! However, though sacrosanct, this right is qualified. The inclusion of the right to privacy in the 1999 Constitution of the Federal Republic of Nigeria, amended as seen in Section 37 that
“the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”
shows that privacy is recognised whether off or online in Nigeria. But unlike more developed countries which have specific legislations and enforcement mechanisms for cyber privacy and similar concepts, this is non-existent in Nigeria. Thus, the only route is to rely on the pretty old grundnorm and the law of torts.
As if these were not enough, bringing a suit in the light of the conservative nature of the bench and the slow judicial process is another issue.
In fact, more unfortunately, the concept of jurisdiction comes to play- or how does one handle a situation where a person’s right to privacy was infringed by someone living in another continent?
Asides that, we even have anonymous users who cover their tracks well making it almost impossible to know who is behind the video or image posted against the owner’s will.
“You grant Snapchat a world-wide, perpetual, royalty-free, sublicensable, and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, create derivative works from, publicly perform, broadcast, distribute, syndicate, promote, exhibit, and publicly display that content in any form and in any and all media or distribution methods”.
Whoo! Snapchat addicts read that again, please!
Then we have the issue of background checks via social media by employers which has been stated to constitute a breach of one’s privacy online. This is a recent trend in Nigeria especially during the pre-interview process.
Initially, when employers started viewing the social media accounts of job applicants as a means of evaluating whether they would make good employees, legal experts cautioned that employers might learn information (such as religion, race, or disability) that could form a basis for a claim that they made employment decisions on prohibited bases.
However, these cautions were mere bluff. Their successes are unlikely today as employers have the discretion to hire who they believe would portray a good image of their brand.
It is not novel to one that there are no specific legislations covering privacy issues on the cyberspace in Nigeria although some of our laws regulations such as the Nigerian Constitution, Nigerian Communications Act 2003, Cybercrime Act, 2015, The National Information Technology Development Agency Draft Guidelines,or Consumer Code of Practice Regulations, 2007 have provisions which seem to create an illusion of some sort of privacy protection online.
With the assumption that these laws can cover privacy issues arising on the cyberspace such as data protection or social media identity theft, the ineffectiveness of these laws, policies or regulations is just too glaring.
In addition, the wordings of the Nigerian constitution in Section 37 for instance can be said to be too vague to effectively cover privacy on the cyberspace especially when interpreted with the literal rule of interpretation.
In conclusion, it can be said that subject to privacy policies of these social media applications and general limitations, there is right to privacy on social media. However, enforcement of this right is still a far-fetched concept especially in a country like Nigeria. Thus, before sending that image or making that video, take a “chilled pill” and think about the long term consequences. And for the individual who has suffered damages from the above, subject to your lawyer’s instructions, it is most advised that you tow the path of Alternative Dispute Resolution and save your time, energy and money. To be forewarned is to be forearmed.
Kehinde Takuro is a graduate of the University of Lagos with particular interest in Cyber & Technology Law, Alternative Dispute Resolution, Property law and Commercial law practice in general. She is an avid writer and blogs in her spare-time. Kehinde is also a First Class Graduate of the Nigerian Law School.