THE IMPACT OF SOCIAL MEDIA ON FREEDOM OF SPEECH AND PRIVACY RIGHTS.

F.I Lazarus .

ABSTRACT: 

In spite of the apparent distinctiveness that exists between the concepts of free speech and privacy, the right to freedom of speech cannot fully be expressed without recourse to privacy rights, and vice versa. Accordingly, the Nigerian legal landscape has been fraught with these brewing complexities which are further complicated by the implications of the “unsolicited” interruption of human existence by technology and the instruments that embody it. This is apparent in the fact that while the law is well occupied, seeking ways to balance the conflicting rights of free speech and privacy, tools like social media handles which create more platforms for complications keep coming into existence. It, therefore follows that the existence of social media has had profound impact on the distinct and co-existence of freedom of speech and privacy rights in the Nigerian legal landscape. 

Against this backdrop, this paper adroitly examines the implications of social media on the constitutional rights of free speech and privacy. With due recourse to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 [as amended], this discourse explores the concepts of freedom of speech and privacy as rights in the Nigerian legal context and analyses them against the ineludible impacts of social media. 

Keywords: Social media, Freedom of speech, Privacy rights, Impact.

1.0 INTRODUCTION 

The death of Diana, Princess of Wales, in August 1977 brought about renewed calls for greater protection for privacy and a shift in public perception about the role of the media and the importance of freedom of expression.  These calls have centred on the grossly intrusive nature of the media and the effects this has on all other individuals. It was, in fact the realization of the role of the media in the death of the princess that routed the sterile debate about freedom of expression and privacy rights. And this debate has remained. 

However, the fourth industrial revolution brought along a plethora of technological advancements and the evolutionary nature of these technologies has driven the entire earth to a point of converging commonality reflected in the numerous social media platforms existent today. These have, fortunately or otherwise had apparent impacts on the enforcement of privacy rights, freedom of speech and their coexistence. Herein lies the crux of this paper.  

Briefly on definitions, it was Warren and Brandeis that defined privacy rights as “the right to be let alone”  and that is, in fact what it is – “the narrow sphere of personal autonomy within which inherently private choices are made”.  Freedom of speech, withal is the right of a person to articulate opinions and ideas without interference or retaliation from government,  while social media refers to the means of interactions among people in which they create, share, and/or exchange information and ideas in virtual communities and networks.  Facebook, Instagram, Twitter are few examples. 

Sequel to the foregoing, this paper explores the impact of social media on freedom of speech and privacy rights with emphasis on its implication on the conflicting correlation extant between the two concepts. 

2.0 CONCEPTUAL/LEGAL FRAMEWORK: PRIVACY RIGHTS, FREEDOM OF SPEECH AND SOCIAL MEDIA 

Privacy is at the heart of the most basic understanding of human dignity . The Constitution of the Federal Republic of Nigeria has defined it as “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic conversations” . Also, the Fourth Amendment to the US Constitution is that privacy rights includes the right of persons “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”.  

Freedom of speech, on the other hand has been defined by the 1st and 14th Amendments to the Constitution of the United States as the right to express information, ideas, and opinions free of government restrictions based on content. Legal provisions are made for it on both international and national strata including but not limited to the Universal Declaration of Human Rights (UDHR) , the International Covenant on Civil and Political Rights (ICCPR) and the Constitution of the Federal Republic of Nigeria . Simply put, the political right to communicate one’s opinions and/or ideas and even have them published is the entire notion of the freedom of speech. 

The pivot of technological influence on human existence is social media. By definition, it is a group of internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allows the creation and exchange of user-generated content.  It creates inclusive platforms where information can be shared and accessed.   

3.0 GENERAL IMPLICATION OF SOCIAL MEDIA 

Apparently, the unique features of inclusiveness and interactivity have allowed social media to comfortably infiltrate the spheres of free public speech and private life. 

Therefore, for the purpose of proper anatomy and depth of analysis, this section is sub-divided into a discourse of the distinct impacts, negative and positive of social media on freedom of speech and privacy rights, and a blanket analysis of the general implication of social media on the reality of their existence. 

 

3.1 SOCIAL MEDIA IMPACT ON FREEDOM OF SPEECH 

Positively, it is, in fact social media that has augmented the principle of freedom of speech in its principal essence. As has been earlier stated, it is the absence of hindrances in the expression of information/ideas/opinions that check-marks freedom of speech in any society and this is actualised by social media impact. In essence, social media gives independence to the voice of individuals whereby they do not have to speak under Punch Newspapers, for instance as contributors but simply as individuals expressing their opinions.  Also, social media has expanded the audience-base of individuals such that there are not merely allowed to be heard but are actually heard. It gives everyone a platform  as well as the ability to become publishers of content and not just consumers of same. 

Negatively, people have become able to stay anonymous when they say things and in as much as this ‘pretends’ to augment the right to speak freely, the dangers it presents are incorporated into its very nature. It becomes difficult to identify authors, avoid copyright infringement and even file suits in cases of defamation.  

3.2 IMPACT OF SOCIAL MEDIA ON PRIVACY RIGHTS 

By an amended complaint dated December 1, 2015, a man called Schrems challenged the transfer of EU citizens’ data to the United States (US) and the use of such data for mass surveillance by Facebook . May it be recalled that communication surveillance by agencies of government even though well protected by law is generally frowned at as constituting nuisance to the private lives of individuals in the society. It suffices, therefore that social media has picked on an already suffering area of law and increased its suffering. For how better can one explain the ability of social media platforms and networking companies to gather personal, sensitive information about individuals, probably to “microtarget”  advertising?  

Also, the privacy hazards of social networks are compounded by platform consolidation, which has enabled some social media companies to acquire competitors, exercise monopolistic power and severely limit the rise of privacy-protective alternatives.  Sadly, the bulk of private data online are highly vulnerable to hacking, data breaches and misuse by third parties.  

While the foregoing concerns are being raised, social media has affected privacy rights positively as well. With the advent of Web 3.0, users are expected to have greater control and ownership over their digital assets and personal information  and this, to a large extent augments personal and data autonomy.  

3.3 BLANKET IMPLICATION OF SOCIAL MEDIA 

Without equivocation, the law provides that the right of every man is defined by the right of others. Put in perspective, freedom of expression is limited by the rights to the privacy of those affected. However, the application of this common principle has proven to be more difficult than it seems and has, such given rise to imbalances and conflicts in legal practice. It is, important, therefore that in the analysis of the impact of social media on freedom of speech and privacy rights, the friction already existing between these two rights be examined, for no impact can be felt when the current state is unknown. 

For decades, the courts have had to answer certain questions which sprung up as a result of the conflicting interception of freedom of speech and the right to individual privacy. Such questions include; do contemporary public figures have to tolerate the publication of personal information/photographs not related to their official duties? Does notification of the ‘supposed’ victim of privacy infringement by the other party exonerate such other party from liability and make the infringement less of what it is? How about the publication of health-related information about public figures, how much of privacy infringement is that? All these and more are issues plaguing the co-existence of freedom of speech and privacy rights. 

Rather unfortunately, the debut of social media has not made this correlation any less tensed. It has, in fact raised further complications on the subject.  

First, it has become more difficult, with social media to draw the line between the public and private lives of individuals. Courts across the globe are confounded by questions about how to characterize social media musings and blogs, whether the information contained therein are public or private, how to think about data-like locations, IP addresses and cookies. These are questions that have arisen as a result of the lack of distinction between public and private life inherent in the social media experience. 

Also, social media has created the possibility of anonymous use of its platforms such that the enforcement of certain sanctions have become difficult.  

Social media has further raised the question of what valid notification is for the purpose of preclusion from liability of the infringing party in the event of privacy rights infringement. In the British case of Mosley v The United Kingdom , the court was of the opinion that the prior notification of individuals about publications on their private life could exonerate them from claims of infringement thereafter. However, social media makes this difficult to practice. Does a text on Instagram or Twitter suffice as sufficient notification for this exoneration?  

Besides, how can the restraints necessary and recommended for the protection of privacy rights be effected, given the ease of communication social media brings? Apparently, people tend to do things more often when they get easier. In March, 2024, two gospel artistes – Nathaniel Bassey & Mercy Chinwo – filed a defamatory suit against an individual who published a statement on social media. Of course, the individual would not have made the effort to publish that statement on Punch Magazine or The Vanguard Newspapers. It was done on social media because social media is the easiest, less expensive platform to make certain statements. And as much as this has promoted the right of individuals to freely express themselves, it has done that to the detriment of the privacy rights of others. 

Furthermore, with social media platforms, people publish without any form of intelligent review and/or censorship. What this does for the entire populace is that it gives these publishers the freedom, if not right, to infringe the privacy of others. 

However, the infiltration of social media into the spaces of freedom of speech and privacy rights is not without positive impacts. These impacts are incorporated into the singular reality that social media has given the both rights the platform to coexist and complement each other such that an individual can share information online while remaining private. There is also the reality that individuals now bear on themselves the responsibility to be private enough so as to prevent their privacy rights from being infringed. So, information can be shared online without express identities. 

Withal, the status quo does require some adjustments. 

RECOMMENDATIONS  

What better way can one deal with technology than with technology? Conventional wisdom, in deed continuously suggests that online tracking devices be activated, an online intelligent review platform be created where information to be shared on social media platforms can be sent in first for censorship before they can be so published, the United Nations (UN) should step into social media platforms administration so as to regulate what they do with the personal data of subscribers, individuals should be sensitised to understand that freedom of speech was not meant to encroach on the privacy rights of others and should not be found to do that, sanctions can be placed in that regard as well. 

Additionally, judicial reviews should be conducted to clarify the position of the law on the extant issues in this sphere of law, this provides guidance to the citizens, for it is only when the law is clearly known that it can be observed. Generally, these factors should be considered in the proposed social media bill. 

CONCLUSION 

In the 21st century where the lives of men are uploaded on social media and their thoughts best expressed on social media platforms, it is profound that measures be put in place to ensure that the incredible benefits of social media are harnessed and utilized in ways that keep the rights of men protected. After all, the crux of technology is to complement human existence and not to jeopardize it.