Internet Platform Regulation in Nigeria: Constitutional Law & Private Platforms

Internet platforms in Nigeria, face a number of regulatory and legal challenges in Nigeria. An accurate understanding of the Nigerian legal environment is therefore important to enable platforms to develop appropriate market-entry, product, compliance and litigation strategies.

Unlike in some jurisdictions where internet platform regulation is principally addressed through a single legislative framework, the Nigerian position is more fragmented. A platform may find itself dealing with constitutional law, data protection, consumer protection, competition law, telecommunications regulation and administrative law, sometimes in relation to the same conduct. In this 3-part series on internet platform regulation in Nigeria, we discuss 3 considerations that, in our view, are particularly relevant to internet platforms operating or intending to operate in Nigeria.

1. Constitutional Law Applies to Private Internet Platforms

The first challenge you have to deal with when navigating internet platform law in Nigeria is constitutional law. Unlike in America, where constitutional rights generally operate against government action and not private entities, in Nigeria, private entities, including internet platforms, can be sued directly for violation of fundamental rights. The distinction is particularly important for internet platforms in Nigeria. In the United States, this position is commonly referred to as the state-action doctrine. The U.S. Supreme Court has repeatedly held that the Constitution generally regulates governmental conduct and does not impose constitutional obligations on private actors simply because their conduct affects an individual's rights. U.S. courts have repeatedly held that platforms such as YouTube and Facebook are private actors and are therefore generally not subject to constitutional restrictions applicable to government actors.

For example, in Prager University v. Google LLC, the Ninth Circuit considered whether YouTube could be treated as a state actor because of the nature and scale of its platform. The Court held that YouTube was a private forum and was not a state actor subject to the First Amendment. Similarly, in Rogalinski v. Meta Platforms, Inc., the Ninth Circuit rejected a claim that Facebook was a state actor merely because it hosts speech on its platform. The distinction is important for an American internet platform because, under the U.S. constitutional framework, the fact that a private platform provides a forum for speech does not, by itself, make the platform subject to the First Amendment.

The implications of this are quite significant for internet platforms in Nigeria. First, a private internet platform can be brought before a Nigerian court in a fundamental rights action where its conduct is alleged to violate a constitutionally protected right. Also, conduct which an American platform may ordinarily approach as a matter of its terms of service, content moderation policy or platform rules can potentially become the subject of a constitutional claim in Nigeria. This is particularly important where the complaint relates to privacy, personal data, freedom of expression or other rights protected under Chapter IV of the Constitution.

Thus, for an American internet platform operating or intending to operate in Nigeria, the fact that the platform is a private company does not, by itself, take constitutional litigation off the table.

Next in the series

This is Part 1 of Balogun Harold's three-part series on Internet Platform Regulation in Nigeria. In Part 2, we consider the development of data protection law in Nigeria and how data privacy claims can become fundamental rights claims against internet platforms.

Read Part 2: Internet Platform Regulation in Nigeria: Data Privacy and Fundamental Rights in Nigeria