REGULATION OF SOCIAL MEDIA

INTERFACE

By

Nkiruka Chidia Maduekwe

Paper Presented at the Roundtable on “Social Media and Public Security” held

under the auspices of The Nigerian Institute of Advanced Legal Studies, on the

15th of October, 2012.

Abstract:

The advent of information – communication – technology (ICT) brought the invention of new technologies that made

available platforms enabling people to communicate and share information in real-time between cities, countries,

and even continents. What used to be “a static pool of information to be called up by people who use it has evolved

more specifically into a bi-directional communication tool in which creativity and opportunities are limitless. This

trend is spearheaded by a young, trained, and innovative generation who are no longer content to communicate

through e-mails and phone text, but view the internet as part of their everyday life, no longer a high-end

technology”. The platform referred to is the Social Media. The social media can be defined as “a set of online

technologies sites and practices which are used to share opinions, experiences, and perspective”. As a result of the

rampant abuse of the social media, there have been calls by individuals and government personalities for the

regulation of the platform. These calls in turn have resulted in vehement and vocal disapproval by social media

users who feel that their right to freedom of expression is sought to be tightened by the government. The paper

employing to a large extent, secondary sources seeks to address the issue of social media regulation, answering the

following questions: what type of regulation is required? Can the social media be regulated? What are the

implications of such regulation? And is regulation necessary? The paper amongst others found that there was no

consensus as to what should be defined as regulation; that establishments and multi-corporations have decided not

to leave the matter of social media regulation to fate but to self-implement what is known as the Social Media Policy

amongst its employees. The paper recommends that Nigeria could borrow a leaf from the EU and perhaps adopt the

EU Data Protection Regulation to regulate social media in Nigeria.

Nkiruka Chidia Maduekwe is a Research Fellow with the Nigerian Institute of Advanced Legal Studies. She has an

LL.B from the University of Abuja, Nigeria, B.L, and also an LL.M in Environmental Law & Policy and an MSc. in

International Oil and Gas Management both from CEPMLP, University of Dundee, Scotland, UK. Professional

membership include: Young Professional Society of Petroleum Engineers, GradEI Energy Institute. Email:

ncmaduekwe@yahoo.co.uk

TABLE OF CONTENT

1. Introduction

2. Background of Study

3. Definition of Terms

4. Social Media Regulation: What! Who! Why?

5. To Regulate or Not to Regulate, That Is the Question

5.1 The Argument for and Against Regulating Social Media as a Public

Utility

5.2 What Should Be Regulated?

6. Conclusion and Recommendation

1. BACKGROUND OF STUDY

From time immemorial knowledge1 has always played a pivotal role in human existence, so

much so that world powers have risen and fallen consequent of it. Man thus, in search of this

existence-changing tool has employed various means with which to constantly keep abreast of

current information, most especially real-time information. Hence, it is little wonder that what

first started out as a government defence project has advanced to such levels beyond human

imagination bringing with it new levels of accessing and giving information between individuals,

organisations, and State governments.

This project is the ARPANET,2 a United States government defence project “whose goal was to

create a non-centralised network designed to survive partial outages; since messages could be

routed or rerouted in more than one direction, the network could continue to function even if

parts of it were destroyed in the event of a military attack or other disaster”. 3

Years later, there was the decision to make the ARPANET no longer an exclusive of the United

States defence department but a global information system that can be accessed by anyone,

anywhere in the world. In order to make this a reality, a new sophisticated and standard protocol

was developed known as the Internet Protocol (IP).4 This technology “defined how electronic

message was packaged, addressed, and sent over the network. It allowed users to link various

1 The term knowledge shall further be referred to as ‘information’. 2 Advanced Research Projects Agency Network. 3 EJ, Louwers, (2005). International Computer Law Vol. 1: A Practical Guide to International Information Technology Law. (Matthew Bender: LexisNexis). 4 The full name is Transmission Control Protocol/Internet Protocol. “It enables computers which use different operating systems to communicate with each other” – see Ibid.

branches of other complex networks directly to the ARPANET which soon became christened as

the Internet”.5

“By 1990s the internet experienced an explosive growth, estimated to double yearly. By mid-

1994, the internet connected an estimated two million computers in more than 100 countries

serving 23 million users, and by September 2002, the number had risen to more than 605

million”.6

Suffice it to state that the term computer has expanded to include personal computers (PC) and

hand-held devices such as Ipads, Galaxy Tabs, Blackberry, Smart phones. Inadvertently, the

number of users recorded as at September 2002 stands out-dated, it far exceeds 23 million users.

The paper employing to a large extent, secondary sources seeks to address the issue of social

media regulation, answering the following questions: what type of regulation is required? Can

the social media be regulated? What are the implications of such regulation? And is regulation

necessary?

The paper amongst others found that there was no consensus as to what should be defined as

regulation; that establishments and multi-corporations have decided not to leave the matter of

social media regulation to fate but to self-implement what is known as the Social Media Policy

amongst its employees. The paper recommends that Nigeria could borrow a leaf from the EU and

perhaps adopt the EU Data Protection Regulation to regulate social media in Nigeria.

Further structured into five sections, Section 2 of the Paper deals with background of study;

Section 3 examines definition of terms; Section 4 discusses instances the call for social media 5 “The Internet consists of networks connecting millions of users worldwide forming a global network in which any computer can communicate with any other computer as long as they are both connected to the internet. Information travels the internet through a variety of languages known as protocols – that is the TCP/IP. Furthermore, the connections between different networks are called gateways. Gateways help to transfer electronic data worldwide” – see Ibid. 6 Ibid.

regulation has been made; Section 5 analyses the what and how of social media regulation; and

lastly, Section 6 deals with both conclusion and recommendation.

2. BACKGROUND OF STUDY

The advent of information – communication – technology (ICT) brought the invention of new

technologies that made available platforms enabling people to communicate and share

information in real-time between cities, countries, and even continents.7 What used to be “a static

pool of information to be called up by people who use it has evolved more specifically into a bi-

directional communication tool in which creativity and opportunities are limitless. This trend is

spearheaded by a young, trained, and innovative generation who are no longer content to

communicate through e-mails8 and phone text, but view the internet as part of their everyday life,

no longer a high-end technology”.9

The platform referred to is the Social Media.10 The social media can be defined as: an

environment that makes it possible for a large number of people to get information and

entertainment while providing a forum where people can meet each other for pleasure11; “a set of

online technologies sites and practices which are used to share opinions, experiences, and

perspective. Fundamentally it is about conversation, thus in contrast with the traditional media,12

7 Samwin Contact Centre Suite; Social Media Interface; http://www.telecomsoftware.com/download/marketing/samwin%20contactcentersuite%20Mediainterface%20engl.pdf. (Last Visited 15th October, 2012) 8 Also known as electronic mails 9 See Supra note 7 10 Also referred to as “new media” – see Social media rules for those regulated by the FSA; Unbiased.co.uk; http://www.unbiased.co.uk/social-media-rules-those-regulated-fsa (Last Visited 15th October, 2012) 11 This definition combine the meaning of ‘social’ + ‘media’ as provided by the Hornby, A.S. Oxford Advanced Learner’s Dictionary of Current English. Edited by Wehmeier, S. 6th Edition (2000). [Oxford University Press: Oxford], pg. 174. 12 Traditional media refers to newspapers, television, and radio

the nature of social media is to be highly interactive. It can be used as a lead medium or in a

supporting role to traditional media, depending on objects, and intended audience”;13 “a powerful

communication tool designed to be disseminated through social interaction, created using highly

accessible, and scalable publishing techniques using the internet”;14 lastly, “any website that

invites a user to interact with the site and with other visitors falls into the definition of social

media”.15

Types of social media include but not limited to: social news16, social networking17, social

bookmarking, social photo and video sharing18, and wikis. The social media has wide and varied

potential uses. It has permeated every sector of business, government.19 So much that businesses

which intend to gain sustainable competitive advantage against competitors are embracing social

media sites to market their products. The government is not left behind in this as; social media

provides the platform needed by government to “create greater transparency, interactive

relationship with the public, a stronger sense of ownership of government policy and services,

and thus a greater trust in government”.20

13 Social Media in Government High Level Guidance, Government Information Services, New Zealand Department of Internal Affairs, November 2011, Version 1; http://webtoolkit.govt.nz/files/Social-Media-in-Government-High-level-Guidance-final.pdf. (Last Visited 15th October, 2012) 14 University of Liverpool social media compliance policy; http://www.liv.ac.uk/csd/regulations/socialmediapolicy.pdf. (Last Visited 15th October, 2012) 15 Daniel Nations; former About.com guide http://webtrends.about.com/od/web20/a/social-media.htm. (Last Visited 15th October, 2012) 16 Examples like blogs, BBC website, The Guardian, ThisDay, and so on, basically any social media with relation to news information receiving and sharing. 17 You have Twitter, LinkedIn, Google +, Facebook, BBM, MySpace, and so on. 18 Examples are YouTube, Skype, and so on. 19 Town hall doors unlocked to social media and bloggers; http://www.communities.gov.uk/news/newsroom/2204300 (Last Visited 15th October, 2012) 20 See Supra note 13

The social media has affected the way information is shared and received. It plays a pivotal

role.21 A number of global events can lay claim to this:

The Arab spring upraising; “social media was effective at organising the grassroots that

the despotic governments shut it down”.22

The London riots of 2011; “social media was used by the rioters to pinpoint where and

when a new area was to be targeted”.23

Occupy Wall Street

The murder of Jill Meagher the Irish Journalist in Australia24

As evidence tool in the 2011 case of Zimmerman v. Weis Markets, Inc.;25 “the plaintiff’s

postings on the social media helped the defendant to ascertain that the untruth of the

plaintiff’s evidence and thus sought an order compelling disclosure and preservation of

non-public portions of plaintiff’s Facebook and MySpace profiles”

Presently the fight for democracy in Syria

Like every utility or good, the social media has been subject to abuse, thus, there are cases of

identity theft, hacking, privacy infringement, posting of hate speeches, wrong information, and

21 In Nigeria incidences include: the current Aluu 4 case, the killing of Cynthia the Nasarawa State student by ‘Facebook friends’, and the Occupy Nigeria Subsidy movement early this year when the Nigerian government announced the removal of petroleum subsidy. 22 Craig, R., viewpoint: the case against social media regulation; http://www.randallcraig.com/case-against-social-media-regulation/. (Last Visited 15th October, 2012) 23 Ibid. 24 Attorneys-general to discuss social media regulation. http://www.dailytelegraph.com.au/news/national/attorneys-general-to-discuss-social-media-regulation/story-fndo2j43-1226488988294. (Last Visited 15th October, 2012). 25 Zimmerman v. Weis Markets, Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. County Ct. May 19, 2011). See - Social Media Evidence: If It's Relevant, It's Discoverable; http://www.socialnetworkinglawblog.com/2012/05/social-media-evidence-if-its-relevant.html. (Last Visited 15th October, 2012).

criminal information, so much so, that there is the call for a regulated social media interface. The

question is what type of regulation is required? Can the social media be regulated? What are the

implications of such regulation? Is regulation necessary?

The next section shall deal with definition of terms and Sections 4 and5 shall seek to give

answers to the questions posed above.

3. DEFINITION OF TERMS

For proper understanding of the discussion of this paper, it is pertinent that the definitions of

certain key terms are known. They are:

Regulation: “this refers to the controlling of something by rules; the official rule made by

government or some other authority”.26

Censorship: defined as “the control of information and ideas circulated within a society

for the purpose of altering or suppressing ideas found to be objectionable or offensive”;27

“a mechanism that deliberately prevents information from reaching the public. It is

regarded as a function exercised by authorities in public as well as private organisations

to control the content of publications”;28 “ the suppression of opposing/divergent views

by the government”29

26 See Supra note 11, pg.? 27 What is censorship? http://gilc.org/speech/osistudy/censorship/ 28 Phillips, P. and Harslof, I. Censorship Within Democratic societies; http://www.thirdworldtraveler.com/Media_control_propaganda/CensorinDemoSoc.html%20 29 Kakungulu-Mayambala, R. Internet Censorship and Freedom of Expression: A Critical Appraisal of the Regulation of Hate Speech on the internet. Paper presented at the BILETA 2008 Conference; http://www.bileta.ac.uk/content/files/conference%20papers/2008/Internet%20Censorship%20and%20Freedom%20of%20Expression%20[Ronald%20Kakungulu].pdf

Client/Server: “once a user connects to the internet, the user interacts with other

computers using a client/server model. The resources of the internet, that is information

and services, are provided through host computers known as servers. The server is the

computer system that contains information such as electronic mail, database information,

or text files. As a client, the user accesses these resources via client programs

(applications) which use TCP/IP to deliver the information to the user’s screen”30

Browser: this refers to “a program that is used to search through information provided by

a specific type of server. A browser helps a user to view and navigate through

information on the internet. Technically a browser is a client program that uses the

hypertext transfer protocol to make requests of web servers throughout the internet on

behalf of the browser”.31 Examples of browsers include: Safari, Netscape Navigator,

Google, Mozilla Firefox, Microsoft explorer, and so on.

Cookies: “a website cookie is usually a small text file on a user’s computer by the web

browser. A cookie can be set to expire when the user closes the browser, or to be stored

until a defined date and time. They are set for a particular domain but in some

circumstances included in content hosted by a third party on user’s web page which

would allow the third party website to create cookies for its domain too. For example a

web page with a Facebook ‘like’ button, a YouTube video, and a Google Analytics might

create a dozen cookies on a visitor’s computer. Despite the importance of cookies – as

most websites features require its use – cookies can be used to track computer activities

30 See Supra note 3 31 Ibid.

and are frequently associated with privacy issues and spyware. Furthermore, poor use of

cookies can expose private information”.32

Database: can be defined as “a collection of independent works, data, or other materials

arranged in a systematic or methodical way and capable of being individually accessed

by electronic or other means”.33 “One of the main features of computers is their ability to

store, manipulate, and transmit data in ways that could not be achieved with manual

records and storage systems. Information processed by computers can be of many types;

personal, business, or governmental information, or a mixture of these”.34

Data mining: this is the practice of automatically searching large stores of data for

patterns. Data mining (also known as Knowledge Discovery in Database, KDD) can be

defined as the “non-trivial extraction of implicit, previously unknown and potentially

useful information from data”.35 It uses machine learning, statistical, and visualisation

technologies to discover and present knowledge in a form, which is easily

comprehensible to humans.

Having discussed and defined the relevant terms, the next section shall examine the issue of

social media regulation and further seek to give answers posed in Section 2 of the Paper.

32 UK Website Cookie Regulation; http://www.culturesparks.co.uk/intelligence/information/uk-website-cookie-regulations. (Last Visited 15th October, 2012). 33 Article 1 (2) of the Legal Protection of Database Directive 96/9 of 11 March 1996; http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML. (Last Visited 15th October, 2012). 34 Coleman, A. protecting Confidential Information. Computer Law. Ed. Reed, C. and Angel, J. (2000). (Blackstone Press Limited: London).pg.244. 35 See Supra note 3.

4. SOCIAL MEDIA REGULATION: WHAT! WHO! WHY?

As a result of the rampant abuse of the social media, there have been calls by individuals and

government personalities for the regulation of the platform. These calls in turn have resulted in

vehement and vocal disapproval by social media users who feel that their right to freedom of

expression is sought to be tightened by the government. A case in point is the recent onslaught of

outrage by Nigerians against the Senate President David Mark for his infamous speech at the

2012 Senate Press Corps Retreat where he canvassed for the regulation of the use of social media

in Nigeria. In the words of the Senate President:

“The emergence of social media like Facebook, Twitter, BlackBerry Messenger, YouTube etc. has changed the face

of media practice by making information sharing easier, faster, and quicker. But not without its demerits. Social

media has become a there to the ethnics of media practice and good governance because of its accessibility and

absolute freedom. Every freedom carries a responsibility. Even in advanced democracies, where we all agree that

good governance is practiced, there is no absolute freedom. I therefore believe that there must be a measure to

check the negative tendencies of the social media in our country. I say this because media practice, particularly

journalism, process its news gathering and dissemination. It also operates a feedback mechanism and where the

practitioners err there is room for rebuttal. But in the social media a faceless character can post any information

that is absolutely false and misleading but will never retract it”36

The Nigerian populace, angry at the possibility of the regulation of their activities on social

media, responded through the same social media that the Senate President’s phone should be

‘occupied’ until he retracted the ‘offensive message’.37

36 Full text of Senate President David Mark Address at the Media Retreat on the Role of the media and Good Governance; http://www.informationnigeria.org/2012/07/full-text-of-senate-president-david-marks-address-at-the-media-retreat-on-the-role-of-the-media-and-good-governance-in-nigeria.html. (Last Visited 15th October, 2012). 37 Mark and the Social Media. http://tribune.com.ng/index.php/politics/46004-mark-and-the-social-media. (Last Visited 15th October, 2012).

As it were, the Senate President is not alone in his call for the regulation of social media

activities, “the Executive Vice-Chairman of Nigerian Communication Commission (NCC), Mr.

Eugene Juwah, represented by the Executive Commissioner, Hon. Okechukwu at the one day

conference on Regulatory Imperative for Cybercrime and Cyber security in Nigeria, indicated

that plans were on to regulate online media and also in furtherance to this, NCC had created a

new department in line with global trend in the fight against cybercrime called the New Media

and Information Security”.38

In addition, the Minister of Information, Mr Labaran Maku has lent his voice to this call. At the

20th anniversary celebration of the National Broadcasting Commission (NBC), the Minister

called for new methods of regulating the airwaves in the country to cub incessant abuse of the

social media. He stated that “regulating the different social media in Nigeria would afford media

practitioners the opportunity to protect the core canon of their practice while deploying these

tools to support their work and also defend national interest because of the advances in

communication technology. He further stated that the failure to ensure regulation of these new

communication technologies will result in the media industry been in danger”39

The call for social media regulation is not sought only in Nigeria. Australia,40 India,41 and United

Kingdom,42 governments are calling for regulations to restrict the kinds of information displayed

on the social media.

38 Obi, P. FG moves to regulate social media as cybercrime soars. ThisDay Online; http://www.thisdaylive.com/articles/fg-moves-to-regulate-social-media-as-cybercrime-soars/110930/ (Last Visited 15th October, 2012) 39 Bisong, E.T. Maku’s call to regulate New Media. Blueprint Online; http://blueprintng.com/2012/09/makus-call-to-regulate-new-media/ (Last Visited 15th October, 2012) 40 Where Australian MPs called for legislative powers to compel social networks to swiftly remove offensive content – see Sharwood, S. Hate Speech Slips beneath Facebook’s Attention Threshold. http://www.theregister.co.uk/2012/08/10/facebook_racism_incident_australia/print.html (Last Visited 15th October, 2012) 41 Where the Executive of an IT firm in India pushed for the regulation of social media by the government; “to check media players like Google, Yahoo, and Facebook from hosting objectionable contents on their websites” –

In countries like China, there is outright ban on social media sites like Facebook, twitter as they

are not allowed to operate or provide access in China. Moreover, China has further strengthened

government oversight of the internet by “stripping anonymity from the internet as users of China

networking blog and forum websites will need to register with their real identities”.43 Following

in the footsteps of China, Kuwait plans to pass laws that will regulate the use of social

networking sites “in order to safeguard the cohesiveness of the population and society”.44

Also there are instances where countries such as Uganda, Bangladesh, and Pakistan, have taken

steps to block access to media sites in response to a particular incident or piece of content. This

action is usually temporary.45

see Govt Should Impose Regulations on Social Media” Infosys Executive Co-Chairman Krish Gopalakrishnan http://articles.economictimes.indiatimes.com/2012-03-07/news/31131986_1_social-media-anti-religious-or-anti-social-contents-websites (Last Visited 15th October, 2012); a statement by the Indian Prime Minister’s office “pushing for a multi-pronged strategy to prevent and contain malicious use of internet and social media” – see Philip, J.T. , Government to unveil new rules to regulate social media http://articles.economictimes.indiatimes.com/2012-09-15/news/33862993_1_social-media-twitter-service-providers (Last Visited 15th October, 2012); also the Indian Telecom Minister, Kapil Sibal has called for the internet to be governed by regulations similar to print and the electronic media – see Social Media too need regulations, says Kapil Sibal http://articles.economictimes.indiatimes.com/2012-02-24/news/31095484_1_social-media-print-media-kapil-sibal (Last Visited 15th October, 2012); “the government of India sought to at the United Nations push for internet regulation. India was supported by China as regulating internet at UN Level would mean that control of social media corporations like Twitter, Google, and Facebook would rest in the hands of UN and its member nations” – see Julka, H., Internet censorship: India to push for internet regulation at United Nations. http://articles.economictimes.indiatimes.com/2012-08-24/news/33366607_1_internet-governance-internet-censorship-objectionable-content 42 The Leveson Inquiry considered alternative regulations for social media – see Leveson Inquiry considers Alternative regulations for social media http://solicitors.contactlaw.co.uk/privacy-law/leveson-inquiry-considers-alternative-regulations-for-social-media-993061.html (Last Visited 15th October, 2012) 43 Chinese Government Issues strict social media draft regulations http://www.chinatechnews.com/2012/06/07/16364-chinese-government-issues-strict-social-media-draft-regulations (Last Visited 15th October, 2012) 44 Galperin, E., Kuwait prepares to crack down on social media. https://www.eff.org/deeplinks/2012/05/kuwait-prepares-crack-down-social-media (Last Visited 15th October, 2012) 45 Social Media: Confronting the Regulatory Challenges. https://itunews.itu.int/En/1688-Social-media.note.aspx (Last Visited 15th October, 2012)

5. TO REGULATE OR NOT TO REGULATE, THAT IS THE QUESTION46

The above section dealt with how governments and government personalities are calling for the

regulation of social media. This Section shall seek to answer the questions: what exactly is meant

by regulation; what type of regulation is required; can the social media be regulated; what are the

implications of such regulation; and is regulation necessary?

From the discourse in Section 4, it is evident that yes the call for regulation is mounting but still

there is yet to be an explicit definition of what is meant by regulation. It is very uncertain if it is

censorship that is referred to or outright regulation by the government. For China and Kuwait,

what is shown obtainable is mostly censorship and it looks like the other countries: Nigeria,

India, Austria, United Kingdom, are tilting towards censorship.

For there to be regulation of the social media as envisioned by these countries, there is the need

to explicitly state what type of regulation is sought as failure to do so will mean that stringent

decisions regarding this matter will not be taken.

This notwithstanding, as the use of social media has become prevalent, “the possibility of using

it improperly is causing policymakers to create guidelines and enforce compliances”.47 It is

pertinent to note that establishments such as financial institutions, elementary schools,

Universities, International Bodies and Corporations have proactively provided for the regulation

of social media activities by the employees, most often referred to as the Social Media Policy, or

Compliance and Guidelines.48

46 Adapted from the opening phrase of a soliloquy in William Shakespeare play Hamlet. 47 Social media laws and regulations you should know http://www.metia.com/seattle/john-porcaro/2011/08/social-media-laws-and-regulations-you-should-know/ (Last Visited 15th October, 2012) 48 See – social networking sites (Last Visited 15th October, 2012); Clapperton, G., Social Law: Social Media Regulation and policy http://usefulsocialmedia.com/blog/analysis/social-law-social-media-regulation-and-policy/ (Last Visited 15th October, 2012); social media compliance solution

Additionally, one can find instances where regulatory bodies have extended their traditional

application to the usage of the social media by companies in the industry they regulate.49,50 A

clear case is that of the Advertising Standards Authority, a United Kingdom Advertising

regulator, whose regulations now cover: “advertisement and other marketing communications by

of from companies, organisations, or sole traders on their own websites, or in non-paid-for space

online under their control, that are directly connected with the supply or transfer of goods,

services, opportunities and gifts, or which consist of direct solicitations of donations as part of

their own fund-raising activities”.51

These instances discussed show that yes the social media can be regulated albeit minimal. Are

there implications to such regulation? The popular card displayed by activists against regulation

of social media is the infringement of the fundamental right to freedom of expression and also

that such regulation will stifle the innovative capabilities of the platform. In fact, some activists

state that “any form of content regulation in the media industry whether through statute or code

of conduct may encroach on citizen’s freedom of speech”.52

http://www.globalrelay.com/resources/files/GlobalRelay-SocialMedia-Overview.pdf (Last Visited 15th October, 2012); voices: Remy Heskett, On social-Media regulations http://blogs.wsj.com/financial-adviser/2012/05/14/voices-remy-heskett-on-social-media-regulations/ (Last Visited 15th October, 2012); city defines social media student, teacher regulations http://www.zdnet.com/blog/igeneration/city-defines-social-media-student-teacher-regulations/16221 (Last Visited 15th October, 2012); Holmes, R., social media compliance isn’t fun but its necessary http://blogs.hbr.org/cs/2012/08/social_media_compliance_isnt.html (Last Visited 15th October, 2012); social media use, guidelines, and policy implications http://hr.ufl.edu/emp_relations/policy/social_media.asp (Last Visited 15th October, 2012) 49 Social media rules for those regulated by the FSA http://www.unbiased.co.uk/social-media-rules-those-regulated-fsa (Last Visited 15th October, 2012) 50 Corporate blog news: FTC to regulate bloggers’ endorsements(Last Visited 15th October, 2012) 51 Chaffey, D., New UK Regulations governing use of digital and social media: ASA Regulations now cover websites and company controlled social media presence. http://www.smartinsights.com/marketplace-analysis/digital-marketing-laws/new-uk-regulations-social-media-launched/. (Last Visited 15th October, 2012) 52 The privatization of censorship: self-regulation in the age of internet convergence(Last Visited 15th October, 2012)

Notwithstanding, the application of a right does not exist in isolation of the rest as the appliance

of one cannot derogate the other, thus the application of freedom of speech is not absolute53 and

like every right; duties and responsibilities are attached. The right to freedom of speech carries

with it “the duties and responsibilities making it subject to such formalities, conditions,

restrictions, or penalties as are prescribed by law and are necessary in a democratic society,

territorial integrity or public safety for the prevention of disorder or crime, for the protection of

health or morals, for the rights of others for preventing disclosure of information received in

confidence, or for maintaining the authority and impartiality of judges”.54 Bearing this in mind,

the question then is where social media activities run afoul of the above definition should it not

be regulated?

5.1 The Argument for and Against Regulating Social Media as a Public Utility

In view of the fact that social media has evolved from sites used to frivolously pass time to

becoming a backbone, a crucial aspect of how users conduct social, political, and

professional business in the global world,55 there has been divergent views as to whether

social media should be regulated as a utility or not. Public utility has been defined as “a

private business organisation, subject to governmental regulation, that provides an essential

commodity”.56 “The concept behind public utility is that while it is run by money –making

53 Media cannot reject regulation http://www.thehindu.com/opinion/lead/article3374529.ece?homepage=true (Last Visited 15th October, 2012) 54 Article 10, European Convention on Human Rights http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf. (Last Visited 15th October, 2012) 55 Thompson, A., Social Media as Public Expectation: The New Public Utility http://www.nypl.org/blog/2010/06/30/social-media-public-expectation. (Last Visited 15th October, 2012) 56 Ibid.

corporation, there is an understanding that the needs of the public for access are important

and must be looked out for”.57

The argument for regulating social media as a utility:

- “Given the fact that very few people can do without social media as it provides the

environment that helps people stay connected, most especially during troubled

times and a portal for business survival, in addition the ubiquity of cell phones that

has brought the services closer, while social media is not life crucial as electricity or

water, still many people would be hard pressed to live a fulfilling and successful life

without it. Thus, social media has become a utility for living in an interconnected

world and should be regulated as such.”58

The argument against regulating social media as a utility:

- “The rapid pace of change in the social media makes it distinct from utilities. Not only

are most of these cyber-services relatively new, but they keep displacing each other”.59

- “The very act of imposing utility status on a service or platform tends to shelter it from

competition and lock them in as real monopolies for the long-haul”.60

- “Public utilities are by their nature, non-innovative, that is consumers are given access to

service at ‘fair rate’ but without incentive to earn a greater return, innovation suffers. But

57 Ibid. 58 Ibid. 59 The danger of making Facebook, LinkedIn, Google, and twitter public utilities. http://www.forbes.com/sites/adamthierer/2011/07/24/the-danger-of-making-facebook-linkedin-google-and-twitter-public-utilities/3/. (Last Visited 15th October, 2012) 60 Ibid.

social media is already available to everyone for free and they are constantly

innovating”.61

- “If social media were classified as utilities and government regulated their data collection

practices or advertising-based business models, prices could be imposed for the first time

as sites struggle to adjust to new rules”.62

5.2 What should be regulated?

It is easier to become bewildered by the argument of whether social media should be regulated or

not, and in that vein overlook the real issue at hand which deals with what should be regulated if

at all the social media should be regulated. Digging deeper, the Paper finds that there is more to

the social media, issues that has not really been dealt with – the issue of data protection, in the

form of infringement of the right to privacy. When the argument for or against social media is

done, there is hardly the talk of the need to regulate data. It is impossible to cry about the

infringement of the right to freedom of speech when on a massive scale the right to privacy is

infringed upon by social media service providers.

In an article on “Facebook’s privacy issues, Joan GoodChild, the senior editor of Chief Security

Officer Online (CSO) highlighted five hidden dangers that most users of the social media were

unaware of: user’s information is shared with third parties; privacy settings revert to a less safe

61 Ibid. 62 Ibid.

default mode after each redesign; Facebook adverts may contain malware; user’s real friends on

the site unknowingly make user vulnerable; and scammers are creating fake profiles”.63

Furthermore, Christian Zimmermann, a researcher at the University of Freiburg in Germany

stated that “online social networks gather information about their users that those users never

intended to disclose and have no idea of what information is pieced together about them. Even

though users deliberately disclose a great deal of their personal data to social networks, the

networks use such information and data to infer more about the online user’s behaviour, allowing

the networks to build extensive user profiles”.64 Zimmermann canvasses that a possible solution

to this will be regulation and force monitoring of the social media provider.65

The European Union in this respect has been proactive. The EU has a Directive on data-

protection which recently has been amended. The new EU Data Protection Regulation is

“intended to bring legislation in line with the demands of the 21st century”.66 It provides for the

following:

Opt-in/Opt-out and obtaining consent: as opposed to the norm where social media

companies make indiscriminate use of the user’s data, they would have to obtain explicit

consent by users by clear statement or affirmation to use their data for marketing

63 Unraveling Facebook’s privacy issues –A lesson in online social networking. http://www.organicsemseo.com/Tags/social-media-regulations/. (Last Visited 15th October, 2012)

64 More regulation only way to stop social networks learning more than we wish, says researcher. http://www.networkworld.com/news/2012/100912-more-regulation-only-way-to-263196.html?page=2 . (Last Visited 15th October, 2012) 65 Ibid. 66 New data protection regulation should reflect marketing needs. http://www.guardian.co.uk/media-network/media-network-blog/2012/sep/24/data-protection-regulation-marketing-law. (Last Visited 15th October, 2012)

purpose.67 “Failure of company to prove that they had properly done such will result in

their having to scrap their contact databases”.68

IP addresses: “IPs is classified as personal data. Translating to mean that web analytics

would no longer be available to companies. So even though they look at the online

activities of anonymised batches of IP addresses, the information itself is considered

personal data, and so off-limits. Thus, digital marketers would be unable to chart the

journey of consumers take from communication to action, or analyse their behaviour

online”.69

The Right to be forgotten: “the new regulation gives users the right to request companies

to delete any information that they hold on them. It has been designed specifically to

enable people delete their social media accounts”.70

6. CONCLUSION AND RECOMMENDATION

The Paper has tried to examine the regulation of social media. From the discourse, it is evident

that the call for social media regulation is worldwide both by government, government

personalities, and business owners. As beneficial as the social media is, has been, and would be,

its negative bearings cannot be dismissed. Thus in analysing reasons for social media regulation,

the Paper finds that there is no consensus as to what should be defined as regulation. This is in

light of the fact that the governments call for regulation was tilting towards censorship which in

itself is a different angle.

67 Ibid. 68 Ibid. 69 Ibid. 70Ibid.

The Paper also found that the establishments and multi-corporations have decided not to leave

the matter of social media regulation to fate but to self-implement what is known as the Social

Media Policy amongst its employees. Furthermore, there has been the call to regulate social

media as a utility.

The paper recommends that Nigeria could borrow a leaf from the EU and perhaps adopt the EU

Data Protection Regulation to regulate social media in Nigeria.

The Paper due to time constrain and limit on words, did not do an in-depth examination but

sought to give a wholesome examination, touching on almost all the aspects of social media

regulation. The paper recommends that further in-depth analysis of the paper would be good for

research purposes.

REFRENCES:

Article 1 (2) of the Legal Protection of Database Directive 96/9 of 11 March 1996; http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML. (Last Visited

15th October, 2012).

Article 10, European Convention on Human Rights

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-

5C9014916D7A/0/CONVENTION_ENG_WEB.pdf. (Last Visited 15th October, 2012)

Attorneys-general to discuss social media regulation.

http://www.dailytelegraph.com.au/news/national/attorneys-general-to-discuss-social-media-

regulation/story-fndo2j43-1226488988294. (Last Visited 15th October, 2012).

Bisong, E.T. Maku’s call to regulate New Media. Blueprint Online;

http://blueprintng.com/2012/09/makus-call-to-regulate-new-media/ (Last Visited 15th October,

2012)

Chaffey, D., New UK Regulations governing use of digital and social media: ASA Regulations

now cover websites and company controlled social media presence.

http://www.smartinsights.com/marketplace-analysis/digital-marketing-laws/new-uk-regulations-

social-media-launched/. (Last Visited 15th October, 2012)

Chinese Government Issues strict social media draft regulations

http://www.chinatechnews.com/2012/06/07/16364-chinese-government-issues-strict-social-

media-draft-regulations (Last Visited 15th October, 2012)

City defines social media student, teacher regulations

http://www.zdnet.com/blog/igeneration/city-defines-social-media-student-teacher-

regulations/16221 (Last Visited 15th October, 2012); Holmes, R., social media compliance isn’t

fun but its necessary http://blogs.hbr.org/cs/2012/08/social_media_compliance_isnt.html (Last

Visited 15th October, 2012)

Coleman, A. protecting Confidential Information. Computer Law. Ed. Reed, C. and Angel, J.

(2000). (Blackstone Press Limited: London).pg.244.

Corporate blog news: FTC to regulate bloggers’ endorsements (Last Visited 15th October, 2012)

Craig, R., viewpoint: the case against social media regulation; http://www.randallcraig.com/case-

against-social-media-regulation/. (Last Visited 15th October, 2012)

Daniel Nations; former About.com guide http://webtrends.about.com/od/web20/a/social-

media.htm. (Last Visited 15th October, 2012)

EJ, Louwers, (2005). International Computer Law Vol. 1: A Practical Guide to International

Information Technology Law. (Matthew Bender: LexisNexis).

Full text of Senate President David Mark Address at the Media Retreat on the Role of the media

and Good Governance; http://www.informationnigeria.org/2012/07/full-text-of-senate-president-

david-marks-address-at-the-media-retreat-on-the-role-of-the-media-and-good-governance-in-

nigeria.html. (Last Visited 15th October, 2012).

Galperin, E., Kuwait prepares to crack down on social media.

https://www.eff.org/deeplinks/2012/05/kuwait-prepares-crack-down-social-media (Last Visited

15th October, 2012)

Govt Should Impose Regulations on Social Media” Infosys Executive Co-Chairman Krish

Gopalakrishnan http://articles.economictimes.indiatimes.com/2012-03-

07/news/31131986_1_social-media-anti-religious-or-anti-social-contents-websites (Last Visited

15th October, 2012

Hornby, A.S. Oxford Advanced Learner’s Dictionary of Current English. Edited by Wehmeier,

S. 6th Edition (2000). [Oxford University Press: Oxford], pg. 174.

Julka, H., Internet censorship: India to push for internet regulation at United Nations.

http://articles.economictimes.indiatimes.com/2012-08-24/news/33366607_1_internet-

governance-internet-censorship-objectionable-content

Kakungulu-Mayambala, R. Internet Censorship and Freedom of Expression: A Critical Appraisal

of the Regulation of Hate Speech on the internet. Paper presented at the BILETA 2008

Conference;

http://www.bileta.ac.uk/content/files/conference%20papers/2008/Internet%20Censorship%20an

d%20Freedom%20of%20Expression%20[Ronald%20Kakungulu].pdf

Leveson Inquiry considers Alternative regulations for social media

http://solicitors.contactlaw.co.uk/privacy-law/leveson-inquiry-considers-alternative-regulations-

for-social-media-993061.html (Last Visited 15th October, 2012)

Mark and the Social Media. http://tribune.com.ng/index.php/politics/46004-mark-and-the-social-

media. (Last Visited 15th October, 2012).

Media cannot reject regulation

http://www.thehindu.com/opinion/lead/article3374529.ece?homepage=true (Last Visited 15th

October, 2012)

More regulation only way to stop social networks learning more than we wish, says researcher.

http://www.networkworld.com/news/2012/100912-more-regulation-only-way-to-

263196.html?page=2. (Last Visited 15th October, 2012)

New data protection regulation should reflect marketing needs.

http://www.guardian.co.uk/media-network/media-network-blog/2012/sep/24/data-protection-

regulation-marketing-law. (Last Visited 15th October, 2012).

Obi, P. FG moves to regulate social media as cybercrime soars. ThisDay Online;

http://www.thisdaylive.com/articles/fg-moves-to-regulate-social-media-as-cybercrime-

soars/110930/ (Last Visited 15th October, 2012)

Philip, J.T. , Government to unveil new rules to regulate social media

http://articles.economictimes.indiatimes.com/2012-09-15/news/33862993_1_social-media-

twitter-service-providers (Last Visited 15th October, 201

Phillips, P. and Harslof, I. Censorship Within Democratic societies;

http://www.thirdworldtraveler.com/Media_control_propaganda/CensorinDemoSoc.html%20

Samwin Contact Centre Suite; Social Media Interface;

http://www.telecomsoftware.com/download/marketing/samwin%20contactcentersuite%20Media

interface%20engl.pdf. (Last Visited 15th October, 2012)

Social Media: Confronting the Regulatory Challenges. https://itunews.itu.int/En/1688-Social-

media.note.aspx (Last Visited 15th October, 2012)

social media compliance solution http://www.globalrelay.com/resources/files/GlobalRelay-

SocialMedia-Overview.pdf (Last Visited 15th October, 2012)

Social Media Evidence: If It's Relevant, It's Discoverable;

http://www.socialnetworkinglawblog.com/2012/05/social-media-evidence-if-its-relevant.html.

(Last Visited 15th October, 2012).

Social Media in Government High Level Guidance, Government Information Services, New

Zealand Department of Internal Affairs, November 2011, Version 1;

http://webtoolkit.govt.nz/files/Social-Media-in-Government-High-level-Guidance-final.pdf.

(Last Visited 15th October, 2012)

Social media laws and regulations you should know http://www.metia.com/seattle/john-

porcaro/2011/08/social-media-laws-and-regulations-you-should-know/ (Last Visited 15th

October, 2012)

Social media rules for those regulated by the FSA http://www.unbiased.co.uk/social-media-rules-

those-regulated-fsa (Last Visited 15th October, 2012)

Social media rules for those regulated by the FSA; Unbiased.co.uk;

http://www.unbiased.co.uk/social-media-rules-those-regulated-fsa (Last Visited 15th October,

2012)

Social Media too need regulations, says Kapil Sibal

http://articles.economictimes.indiatimes.com/2012-02-24/news/31095484_1_social-media-print-

media-kapil-sibal (Last Visited 15th October, 2012

Social media use, guidelines, and policy implications

http://hr.ufl.edu/emp_relations/policy/social_media.asp (Last Visited 15th October, 2012)

Social networking sites (Last Visited 15th October, 2012); Clapperton, G., Social Law: Social

Media Regulation and policy http://usefulsocialmedia.com/blog/analysis/social-law-social-

media-regulation-and-policy/ (Last Visited 15th October, 2012)

The danger of making Facebook, LinkedIn, Google, and twitter public utilities.

http://www.forbes.com/sites/adamthierer/2011/07/24/the-danger-of-making-facebook-linkedin-

google-and-twitter-public-utilities/3/. (Last Visited 15th October, 2012)

The privatization of censorship: self-regulation in the age of internet convergence(Last Visited

15th October, 2012)

Thompson, A., Social Media as Public Expectation: The New Public Utility

http://www.nypl.org/blog/2010/06/30/social-media-public-expectation. (Last Visited 15th

October, 2012)

Town hall doors unlocked to social media and bloggers;

http://www.communities.gov.uk/news/newsroom/2204300 (Last Visited 15th October, 2012)

UK Website Cookie Regulation; http://www.culturesparks.co.uk/intelligence/information/uk-

website-cookie-regulations. (Last Visited 15th October, 2012).

University of Liverpool social media compliance policy;

http://www.liv.ac.uk/csd/regulations/socialmediapolicy.pdf. (Last Visited 15th October, 2012)

Unraveling Facebook’s privacy issues –A lesson in online social networking.

http://www.organicsemseo.com/Tags/social-media-regulations/. (Last Visited 15th October,

2012)

Voices: Remy Heskett, On social-Media regulations http://blogs.wsj.com/financial-

adviser/2012/05/14/voices-remy-heskett-on-social-media-regulations/ (Last Visited 15th October,

2012)

What is censorship? http://gilc.org/speech/osistudy/censorship/

Where Australian MPs called for legislative powers to compel social networks to swiftly remove

offensive content – see Sharwood, S. Hate Speech Slips beneath Facebook’s Attention

Threshold.

http://www.theregister.co.uk/2012/08/10/facebook_racism_incident_australia/print.html (Last

Visited 15th October, 2012)

Zimmerman v. Weis Markets, Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. County Ct. May

19, 2011).