The Intersection between Intellectual Property protection and the Anti-Hate Speech Bill
The debate about the Anti-Hate speech bill is one of the most controversial topics in Nigeria in recent times. The bill, which has garnered a lot of negative criticisms due to its provisions which seek to put a limit on the fundamental freedom of expression as enshrined in the Nigerian Constitution has been shelved again for the second time within a year as at November 2019. The backlash essentially sprouts from the restriction that would be placed on the freedom of the Nigerian populace to express their opinions from the fear that such an exercise might be deemed hateful by some people. The bill is also believed to be a means of clamping down on the propagation of ideas, opinions and information, thereby affecting the rights of citizens to enjoy the freedom to produce, protect and distribute intellectual works such as literature, paintings, music amongst others. From the lens of an Intellectual Property Rights enthusiast, here are the intersection between Intellectual Property protection and the Anti-Hate Speech bill.
To start with, the bill defines hate speech as when a person “uses, publishes, presents, produces, plays, provided, distributes and/or directs the performance of any material, written and or visual which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria”. With this definition in mind, it can be derived that the bill becomes contradictory to the Constitution of the Federal Republic of Nigeria which provides in section 39(10) 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”.
In essence, the bill will clamp down on the freedom of people to express, protect and distribute their ideas as a seemingly innocent work by a Yoruba author who innocently writes about his opinion on the perceived Igbos’ love for money might land such author a jail term if such work is reported for hate. With the fear of prosecution in mind, the populace will fear expressing ideas that may be deemed hateful and thus put a restraint on how people express themselves. This will consecutively affect the world of intellectual property rights as works that have been criminalised cannot be protected under the same judicial system. The copyright of holders would be forfeited and trademarking a name, logo or motto that can be tagged as festering hate will become difficult, thereby leaving such work open for exploitation.
Apart from hindering intellectual property rights owners and holders from enjoying their works, the anti-hate speech bill, through its provisions also seek to make criminals out of those intellectual property rights holders. The situation becomes dicey in the court of law as the words of the bill are ambiguous and open to several meanings. This confers the power on the court to determine what constitutes “threatening, abusive or insulting” material as well as the extent to which such person would be punished if found guilty; bearing in mind that the severity of punishment under the bill range from fines of up to ₦10 million to life imprisonment and death by hanging for works that cause the death of another.
At this point, it is pertinent that the pros and cons of this bill are carefully examined before the bill is passed into law as it can be used as an instrument of witch-hunting and persecution. Section 5(2) of the bill allows for the perception of the person harassed to be factored into the case while determining whether conduct is offensive. This subjectivity among other examples sprinkled throughout the bill is too dangerous for a bill that seeks to limit a fundamental aspect of human lives; freedom of expression.
Moreover, apart from imposing a restraint on the right to express ones’ self, the anti-hate speech bill will also affect some other fundamental human rights which are closely knitted with intellectual property rights such as the right to private and family life as enshrined in section 37 of the Constitution of the Federal Republic of Nigeria which states, “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”. The anti-hate speech bill will infringe on such right as the correspondence of ideas between two individuals, say an author and an editor or publisher, might be used as evidence against the parties if such idea(s) is reported as hate speech.
Thus, the anti-hate speech bill is a potentially dangerous tool against the protection of intellectual property rights as well as a likely instrument of terrorism against critics and opponents of government as it is a normal occurrence in Nigeria to see people pen down articles or make cartoons/animations to express their grievances against the government. Such instances include works decrying the actions of the government appointing people from a section of the country to occupy top positions in the administration of the country. It also includes works produced to condemn the ills of an ethnic group or religious sect against other groups in the country. Such group or sect could report the creator of such work at the National Commission for the Prohibition of Hate Speech and institute an action against a copyrighted work.
On another note, the bill could serve a positive purpose as it would ensure that people do not misuse the power of the pen and other means of information communication to persecute other people and spread hate. The provision of the bill will ensure that intellectual works are scrutinised before the creator of such could protect and benefit from a piece that can be harmful to others. This is, however, a double-edged sword as there is the possibility of a more strenuous means of registering intellectual properties as such works have to be checked against hate speech and more.
In conclusion, the essence of the National Commission for the Prohibition of Hate Speech Bill (the anti-hate speech bill) is questionable primarily on the basis that the bill has no provision to solve any real problem in Nigeria. Also, there are several laws already in place to cater for many of the offences the bill seeks to address and these laws include the Cyber Crimes Act and the Anti-Terrorism Act. Both laws are already being used to infringe on Nigerians’ freedom of expression. A new one will only make the noose of the authorities tighter on prospective opponents; therefore, before the anti-hate speech bill is passed into law, Nigerians must ensure that all the necessaries are done such as total compliance with Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR)
Yusuf Aisha Olabisi is a 200 level law student of University of Ibadan. She has interest in Intellectual Property, Technology and Medical law. She enjoys all forms of art.