Media and Freedom of Expression and Information: The Laws, Principles and Limitations.

Being a Paper Presented  by Moruff O. Balogun, Esq., at Eagle 102.5FM Founder’s Day Lecture; Today 12TH Day of July, 2023 at Eagle FM Premises, Ilese-Ijebu, Ogun State, Nigeria.

 

INTRODUCTION:

God made men with the ability to express themselves. Men express themselves in speech, through their writings, works of art, gestures and in many other ways. Also, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) permits freedom of speech/expression.

Human expression can however be harmful to other human beings or the country at large, hence the need for checks on human expression.

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Those checks however fall within the purview of the law of defamation, law of sedition, copyright law, advertising law, law of contempt, Matrimonial Causes Act, Official Secrets Act, Obscene and Harmful Publication Laws and other laws making specific provisions.

(1) The Media:

The terms “media” and “press” are twin terms. They mean more or less the same thing. They are therefore used interchangeably. The term media means – the means of mass communication, such as radio, television, newspapers, books, advertising and other means of receiving and disseminating ideas and information.

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It also includes social media such as Facebook, Twitter, Instagram, WhatsApp, LinkedIn and many more. The aggregate of media practitioners and the writing or self expressing public.

  • The Kinds of Media

The press or mass media may be broadly divided into two kinds as follows:

The Print Media: The print media refers to any form of writing, words, information, publication or communication usually, but not exclusively made on paper such as, newspapers, magazines, periodicals, catalogues, brochures, handbills, books, tracts, leaflets, banners, whether or not made with paper, cloth, flex, information or instructions written on the body of any kind of product such as plastic plates, gift items, advertisement on the body of motor vehicles, billboards and so forth.

The Electronic Media: The electronic media includes every other medium of receiving, publishing and communicating ideas and information other than paper medium. The electronic media is also commonly and narrowly referred to as broadcast media.

The electronic media refers to all forms of audio-visual publications, transmission or broadcast by means of electronic gadgets and equipment such as radio, television, fax, internet on the computer, photocopier, scanner, telephone and so forth.

Thus, the term “electronic media” is a wider, comprehensive and better name, as it includes every electronic medium for receiving and disseminating ideas and information, including broadcast equipments. In order to carry out its functions, the press has to source, process and disseminate information.

The press is no longer a local or national institution but an international body and network, which has helped to make the world a global village. It has greatly promoted international relations, business, understanding and co-operation.

It has been in the vanguard of the struggle for the realization and sustenance of civil liberties. Very importantly, the press sustains democracy, whilst, democracy in turn also sustains a free press. This is a continuous circle.

 

  • The Role of the Press/Media Under the Nigeria Constitution:

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) specifically assigns a Constitutional right, power, duty or obligation to the press.

Section 22, of the 1999 Constitution provides:

“The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the Government to the people.”

In view of the above, the Constitutional duties or obligations of the Press are in two folds: a nation builder; and a watchdog of the government’s actions.

Distinguished audience and listeners, allow me to borrow few words from the book authored by Hon. Prince Tony Mohmoh, a distinguished journalist, lawyer and former Minister of Information titled “The News of the Forgotten Army” where he explained the role of the Press graphically. In his words, the press is a:

“Neighbour of the lonely, informer of the curious, entertainer of the bored, teacher of the willing, victim of unaccommodating, friend in times of bliss and enemy in times of adversity, champion of freedom and barometer of freedom’s ups and downs, foot-mat of the successful, bad boy of the thief and fraudulent, naked gunpowder in the hands of the despots, encyclopedia of joy and sorrow, success and failure, honesty and half- truths, banter and blackmail.”

Other traditional or general role of the press in a modern society includes the followings:

  • To carry news and publish information.
  • A means of communication between, and among individuals, and the world in general on any matter of interest.
  • A constructive critic of government and society.

The press is the voice of the voiceless people. It is a voice to speak on behalf and articulate the views and positions of the downtrodden people who are not in the main stream of the affairs in society.

The press is an opinion moulder and setter of agenda, an advocate of change through investigating and fact finding reportage. It is a medium for the education and enlightenment of the general public. It is also a means of entertainment and relaxation.

Indeed, the press is an interesting institution. It is a mirror of society. It is a child of controversy as well as the moderator of controversy and events. It is a recorder and keeper of history, often times; it is a judge of events, actions and people.

 

(2) Freedom of Expression and Information:

The freedom of expression and information is vital to our ability to convey opinions, convictions and beliefs, and to meaningfully participate in democracy.

 

  • Laws/ Legislation Relating to Media and Freedom of Expression and Access to Information

The right to freedom of expression and access to information is well guaranteed and protected by several legislations for the purpose of ensuring that no person whether corporate or natural is deprived of it.

(a) The Constitution of the Federal Republic of Nigeria, 1999 (as amended)Section 39 (1) provides:

“That every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

Section 39 (2) also states:

“Without prejudice to the generality of subsection (1) of this Section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions.”

Provided that no person, other than the Government of the Federation or of 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, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever”.

It is important to state clearly that no permission or authorization is needed for the purpose of exercising the right as stated under Section 39 (1) above.

Thomas V. Collins (323) US 516A, statute required a labour organizer to obtain a license before he could address an assembly of labour. The defendant ignored the statute and spoke.

His conviction for speaking without a license was set aside on appeal because the statute was an infringement of his constitutional right to speak. He is not required to submit to the unconstitutional law, and apply for the license and be refused the right to speak before he can challenge the validity of the law.

Under the right to freedom of expression and the press, public speaker or a religious leader who is required to get a license to address a meeting cannot be convicted for preaching without a license. The same thing applies to any other person who wants to talk.

 

(b) Freedom of Information Act, 2011

This is another Federal legislation that guarantees the right to freedom of expression and access to information.

The Act is primarily enacted to make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent that consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes and for related matters.

Any person which includes a corporation sole and body of persons whether corporate or incorporate, acting individually or as a group can apply or request for information whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution under this Act.

An applicant needs not demonstrate any specific interest in the information being applied for. Section 4 of the Act further states that the public institution to which the application is made shall within seven (7) days after the application is received make the information available to the applicant.

And where the public information considers that the application should be denied, the institution shall give written notice to the applicant that access to all or part of the information will not be granted, stating reasons for the denial and the Section of this Act under which the denial is made.

A person entitled to the right of access conferred by this Act shall have the right to institute proceedings in the court to compel any public institution to comply with the provisions of the Act.

This to be done within 30 days after the denial.And where a case of wrongful denial of access is established, the defaulting officer or institution commits an offence and is liable on conviction to a fine of Five Hundred Thousand Naira Only (N 500, 000: 00). See Section 7(5) of the Act.

It is a criminal offence punishable on conviction by the Court with a minimum of 1 year imprisonment for any officer or head of any government or public institution to which this Act applies to willfully destroy any records kept in his custody or attempt to doctor or otherwise alter same before they are released to any person, entity or community applying for it.

Section 10 of the Act. It is important to note that public institution under this Act means any legislative, executive, judicial, administrative or advisory body of the government, including boards, bureau, committees or commissions of the state, and any subsidiary body of those bodies including but not limited to committees and subcommittees which are supported in whole or in part by public fund or which expands public fund and private bodies providing public services, performing public functions or utilizing public funds.

 

(c) The Universal Declaration of Human Rights (UDHR)

Article 19 of the Universal Declaration of Human Rights, (UDHR) adopted by UN General Assembly in 1948 guarantees the right to freedom of expression and information in following terms:

“Everyone has the right to freedom of opinions and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

It is more and generally accepted that freedom of expression and freedom of the press are of importance for the “three D’s” i.e Development, Democracy and Dialogue.

 

  • Limitations to the Freedom of Expression and Access to Information

The laws limiting freedom of expression and the press in Nigeria include:

(a) The 1999 Constitution:

The 1999 Constitution, by Section 39 (1), guarantees the right to freedom of expression and the press. However, the proviso to Section 39(2) and (3) of the Constitution places a limitation on the freedom of expression and the press by:

(i) Requiring authorisation by the President of the Federal Republic of Nigeria in order to own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.

(ii) Prohibiting the publication of information received in confidence, that is, matters classified by governments as official secrets or as confidential matters, or any matter that will affect the maintenance of the authority and independence of the courts, that is, publications which constitute contempt of court, and publications prohibited by laws regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or,

(iii) Prohibiting the publication of information, such as, official secrets, security matters or other classified matters, received in confidence by persons holding office under the Federal Government or Government of a State, or confidential information received by members of the Armed Forces of the Federation.

Section 37 of the 1999 Constitution guarantees to the individual the right to private and family life, and so the press may not impugn the private and family life of an individual with inappropriate or unlawful publications, except for instance where the individual in question is a public figure, or there is lawful justification, or it is a matter of public interest and so forth.

Section 45 of the 1999 Constitution permits reasonably justifiable laws in limitation of press freedom in the interests of:DefencePublic safety Public order Public morality Public health; and For the purpose of protecting the rights and freedom of other persons, such as under the law of defamation, criminal libel, the Children and Young Persons Laws of the various States and under the Matrimonial Causes Act and so forth.

(b) Official  Secrets Act

The Official Secrets Act prohibits the publication of classified or confidential information and matters relating to defence establishments, security installations and other protected places in Nigeria. Additionally, section 97 of the Criminal Code Act prohibits the disclosure of official secrets and the abstraction of confidential documents.

(c) Law of Sedition

Sections 50 -60 of the Criminal Code Act provide for the law of sedition, and prohibits the publication of seditious matters and other undesirable or alarming publications and the carrying out of seditious acts.

(d) Law of Contempt:

Sections 133 and 6 of the Criminal Code and section 155 of the Penal Code Law which respectively provide for the law of contempt, prohibit acts of disrespect and disobedience to court, including publications which are disrespectful or are aimed at damaging or destroying the maintenance of the authority or the independence of the courts.

Contempt in the face of Court is an offence punishable by a judge suo motu, that is, immediately on its Own, under the inherent powers of a court under the English common law.

The Constitution has also made provision for the punishment of contempt of court in sections 6(6) (a) and 39(b) (a) respectively.

On the other hand, the Legislative Houses (Powers and Privileges Act) provides for contempt of parliament and at the application of the relevant parliament such contemnor is usually prosecuted in court, and if found guilty is sanctioned accordingly.

(e) Obscene and Harmful Publication  Laws

The obscene and harmful publication laws prohibit the publication of obscene and harmful literatures, articles and acts that are likely to destroy the morality of the public. Criminal law is the main law that prohibits immoral acts and obscene and harmful publications.

(f) The Criminal Code Act and laws under sections 214-233(a) prohibit various offences against morality, whilst sections 233(b)-(f) specifically prohibits obscene publications and articles. This apart, the Penal Code, the Children and Young Persons Laws, the Constitution, and so forth also prohibit obscene and harmful publications.

(g) Defamation Law:

Under the defamation laws of the various states, it is wrong for one person to defame another person by means of defamatory publications. The defamation laws of the various states have been passed to protect the reputation of a person.

A person may therefore be liable for making defamatory statements about another person without justification. In addition, defamation is also a crime, and sections 373 -381 of the Criminal Code Act and laws prohibit defamation. It also provides defences to a charge of defamation.

Dumbo & Others v Chief Stephen Idugboe [1983]1SCNLR 29, the plaintiff/respondent was a director of the board of a certain company. The defendants/appellants wrongly published in the Nigerian Tide newspaper that the plaintiff was ‘removed from office’.

He sued for defamation. The Supreme Court held in favour of the plaintiff respondent, that it was defamatory to publish of a person that he was removed from office’ as removal of any person from a position of responsibility and trust, cannot in the normal course of human behaviour and thinking be regarded by reasonable people as a tribute.

 

(3) Copyright Act:

The Copyright Act protects copyright work for a copyright owner. Therefore, any publication or other act, which is an infringement of copyright work, or intellectual property, is wrongful and attracts appropriate sanctions under copyright law.

 

(4) Advertising Law:

The law of advertising and particularly, the Advertising Practitioners (Registration, etc) Act, 1990 deals with the regulation of the profession, the practice of advertising in Nigeria, and ethical issues arising from the practice of advertising.

 

(5) The National Broadcasting Commission Act:

The National Broadcasting Commission Decree now Act as amended by the National Broadcasting Commission (Amendment) Decree No. 55 of 1999 regulates radio and television broadcasts in Nigeria.

 

(6) Nigeria Communications Commission Act:

The Nigerian Communications Commission is empowered by this Act to regulate all telephone service providers and related activities in Nigeria.

 

(7) The Newspaper Act:

The Newspapers Act and its equivalent Newspaper Laws in the States made provisions for the registration of newspapers and sundry purposes relating to the newspaper industry.

The provisions of the Newspaper Act constitutes a prior restraint, which in fact, is a limitation on publication and therefore a breach of the constitutional provision for freedom of expression and the press. Such prior restraint makes newspapering unattractive and discourages investments in the sector.

It is a law designed to proscribe an unwanted news media.

 

(8) Freedom of Information Act

2011.A public institution may deny an application for any information the disclosure of which may be injurious to the conduct of International Affairs and the defence of the Federal Republic of Nigeria.

Finally, one should never forget the other side of the right to freedom of expression, namely the ability to use it. Providing capacity building for media professionals and ensuring media and information literacy skills for each and every citizen remains core for commitment to democracy.Thank you for listening.

 

REFERENCES:

Statutes –

  • The 1999 Constitution
  • Official Secrets Act Law of Sedition
  • Law of Contempt
  • Obscene and Harmful Publication Laws
  • Defamation Law
  • Copyright Act
  • Advertising Law
  • The National Broadcasting Commission Act
  • Nigeria Communications Commission Act
  • The Newspaper Act
  • Freedom of Information Act, 2011.

Textbooks –

  • Defamation: Laws, Practice and Procedure 2nd Edition by T.O.A. Tugbiyele
  • Information and Communication Technology Laws in Nigeria: A comparative Reader by Abdulsalam O. Ajetunmobi.
  • Constitutional and Migration Law in Nigeria by Sebastine Tar. Hon, SAN.

 

About the Author 

Moruff O. Balogun Esq.                          Ijebu Ode, Ogun State.            08052871414                             09121207712 [Whatsapp]

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