The “Shadow Ban” as a Legal Remedy: Interlocutory Injunctions and the Rightto Erasure in Nigeria

Introduction 

Cyber harassment and online gender-based violence (O-GBV) are increasingly pervasive in  Nigeria, mirroring global trends in digital abuse. Victims of such harassment often find that even  when perpetrators are identified, arrested, or prosecuted, the harmful content remains accessible  online. Platforms’ slow response to complaints, inadequate content moderation, and the  borderless nature of the internet exacerbate the harm. This raises pressing questions about the  efficacy of traditional legal remedies and the role of the law in protecting victims in real-time. 

One proposed solution is the concept of a “shadow ban” as a legal remedy, where content is  suppressed, restricted, or hidden online pending the outcome of legal proceedings. This article  explores the legal feasibility of interlocutory injunctions directed at Internet Service Providers  (ISPs) and social media platforms in Nigeria to achieve such suppression. Central to the  argument is Section 37 of the Nigerian Constitution, which guarantees the right to privacy, and  whether it can be interpreted as grounding a mandatory “Right to Erasure” for victims of cyber GBV. 

The Legal Challenge of Cyber harassment in Nigeria 

Online-GBV encompasses stalking, harassment, image-based sexual abuse, revenge  pornography, and other harmful conduct perpetrated online. In Nigeria, such acts are primarily  addressed under the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 (“Cybercrimes  Act”) and related provisions of the Criminal Code and Penal Code in applicable states. 

The Cybercrimes Act criminalizes acts such as identity theft, online fraud, and computer-related  offences. However, it offers limited practical recourse for victims seeking immediate removal of  harmful content. For example, while Sections 24 and 38 of the Act criminalize the unauthorized  distribution of obscene materials, enforcement often lags behind content dissemination. Even  after a perpetrator is charged, content may remain online indefinitely due to the decentralized  and global nature of platforms, which may not prioritize or recognize Nigerian court orders. 

Interlocutory Injunctions as a Legal Mechanism 

Interlocutory injunctions are a well-established equitable remedy designed to preserve the status  quo pending the resolution of a dispute. In the Nigerian legal context, an interlocutory injunction  may be granted where a claimant demonstrates: 

1. A prima facie case with a probability of success; 
2. The likelihood of irreparable harm if the injunction is refused; and 
3. That the balance of convenience favors granting the injunction.

Applying this to cyber harassment, victims may seek an injunction requiring ISPs or social  media platforms to suppress or remove harmful content while criminal or civil proceedings  continue. This could function as a form of “shadow ban,” ensuring that the ongoing presence of  the content does not exacerbate harm, such as emotional distress, reputational damage, or further  harassment. 

However, implementing this raises complex legal and practical issues. First, the jurisdictional  reach of Nigerian courts over global platforms is limited. Platforms may argue that they are not  bound by Nigerian law unless they maintain a physical presence in the country. Second, there are  procedural challenges: courts would need reliable mechanisms to identify the content and ensure  compliance, particularly given the rapid and viral nature of digital content. 

content, suggesting that a similar approach could be extended to online harassment cases.¹ Section 37 of the Nigerian Constitution and the Right to Erasure Despite these challenges, Nigerian courts have shown increasing willingness to grant orders  against intermediaries in civil and commercial contexts. For example, the Federal High Court has  previously issued orders requiring domain registrars to disable websites hosting infringing  Section 37 of the Constitution guarantees the right to privacy: 

“The privacy of citizens, their homes, correspondence, telephone conversations  and telegraphic communications is hereby guaranteed and protected.”² 

Though primarily aimed at protecting private communications, this provision can be interpreted  as encompassing the digital sphere, including online content that infringes personal dignity and  autonomy. In particular, victims of cyber-GBV have a strong argument that the continued online  presence of abusive content constitutes a violation of their privacy. 

This opens the possibility of a “Right to Erasure”, whereby victims could request the removal  of harmful online content, and courts could direct ISPs or platforms to comply pending trial or  investigation. The concept has parallels in the European Union’s General Data Protection  Regulation (GDPR), Article 17, which recognizes a right to erasure or “right to be forgotten” in  certain circumstances.³ While Nigeria does not yet have a formal data protection-based right to  erasure, the principle can be grounded in constitutional privacy protections combined with civil  remedies like injunctions. 

Courts could, therefore, issue interlocutory injunctions mandating platforms to suppress content  temporarily, effectively giving victims a form of shadow ban until proceedings are concluded.  This balances the protection of victims with the rights of alleged perpetrators and avoids  permanent censorship before adjudication.

Practical Considerations 

While legally feasible in theory, applying interlocutory injunctions to digital content raises  several practical considerations: 

1. Identification of Platforms: Many platforms hosting harmful content operate outside  Nigeria. Coordination with international intermediaries may be required. 
2. Verification of Content: Courts must establish that the content is abusive, harassing, or  violative of privacy. This may require expert testimony or technical assistance. 3. Enforcement Mechanisms: Compliance with court orders may need monitoring, and  penalties for non-compliance must be clearly defined. 
3. Freedom of Expression: Interlocutory orders must be carefully framed to avoid unduly  infringing on free speech rights under Section 39 of the Constitution. Courts would need  to balance victims’ privacy and protection against freedom of expression. 

These challenges are not insurmountable. Legal systems in other jurisdictions, such as the UK  and India, have successfully issued injunctions against intermediaries and platforms in online  harassment cases.⁴ Nigerian courts can draw on comparative law principles while tailoring  remedies to local realities. 

Policy Implications 

Recognizing a constitutional right to erasure and enabling interlocutory injunctions would have  significant policy benefits. Victims of cyber-GBV would have access to timely relief, preventing  prolonged harm while investigations or trials proceed. It would also incentivize social media  platforms to improve content moderation and cooperate with local legal authorities. 

However, implementing such remedies requires complementary reforms, including: 

• Clear rules for identifying and serving international platforms; 
• Guidelines for judicial assessment of online content; 
• Capacity-building for courts to handle digital evidence; 
• Public awareness campaigns on digital rights and remedies. 

By framing interlocutory injunctions within Section 37, Nigeria could pioneer an approach that  respects victims’ privacy, strengthens access to justice, and balances constitutional rights in the  digital age.

CONCLUSION 

The continued presence of harmful online content, even after a perpetrator has been identified or  arrested, highlights the limitations of traditional legal remedies in Nigeria. Victims of cyber GBV often remain exposed to harassment, reputational damage, and emotional distress while the  legal process unfolds. In this context, interlocutory injunctions directed at ISPs and social media  platforms offer a promising mechanism. Acting as a temporary “shadow ban,” such measures  could remove or restrict access to harmful content during ongoing trials, ensuring that victims  are not subjected to further harm while awaiting justice. 

Grounding these remedies in Section 37 of the Nigerian Constitution provides a strong legal  basis. The constitutional guarantee of privacy can be interpreted to support a mandatory right to  erasure, allowing victims to request the suppression of content that infringes on their dignity,  safety, and personal space. Although Nigeria does not yet have a formal statutory right to erasure  similar to the European Union’s GDPR, the principle aligns with emerging norms in digital  rights and privacy protection, and courts could adapt it to the local context. 

Practical challenges remain. Jurisdiction over global platforms, enforcement of court orders, and  the need to balance privacy with freedom of expression are all significant considerations.  However, Nigerian courts can draw on comparative experiences from other jurisdictions, where  courts have successfully issued injunctions against intermediaries to prevent the dissemination of  abusive or harmful content. By carefully designing interlocutory relief that is time-bound,  narrowly tailored, and enforceable, the courts can protect victims while respecting constitutional  safeguards for free speech. 

Ultimately, embracing interlocutory injunctions and the right to erasure would ensure that  victims of cyber-harassment have access to timely, meaningful, and effective protection in the  digital sphere. Such an approach not only addresses the immediate harms caused by online abuse  but also signals a broader commitment to adapting Nigeria’s legal framework to the realities of  the digital age, where the pace and reach of information require innovative remedies alongside  traditional legal mechanisms.

REFERENCES (OSCOLAR style) 

Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 (Nigeria). 

1. Constitution of the Republic of Nigeria 1999, s 37. 
2. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April  2016 on the protection of natural persons with regard to the processing of personal data  and on the free movement of such data (GDPR), Art 17. 
3. Google Inc v Vidal-Hall [2015] EWCA Civ 311; Shreya Singhal v Union of India (2015)  5 SCC 1.
4. Federal High Court of Nigeria, MTN Nigeria Communications Ltd v Nigeria  Communications Commission (unreported).