Authored By: Borokinni Fathia Oluwatimilehin
Lagos State University
Introduction
The emergence of social media has profoundly reshaped the way information is created, shared, and consumed across the world. Platforms such as Facebook, X (formerly Twitter), TikTok, and YouTube have evolved beyond mere communication tools into influential spaces for political participation, commercial activity, public debate, and social interaction. While these platforms have significantly strengthened the exercise of freedom of expression, they have also become vehicles for the rapid dissemination of harmful online content, including hate speech, misinformation, cyberbullying, terrorist propaganda, and defamatory material. The borderless nature and instantaneous reach of social media have consequently posed complex legal challenges for governments and regulatory authorities seeking to protect individuals and society without undermining fundamental rights.
One of the most contentious issues arising from this digital transformation is whether social media platforms should be held legally responsible for content created and disseminated by their users. Although imposing greater obligations on these platforms may enhance user safety and promote digital accountability, excessive regulation carries the risk of suppressing legitimate expression and discouraging the free exchange of ideas. This tension has produced varying regulatory responses across jurisdictions, with some adopting stricter oversight mechanisms than others.
This article argues that social media platforms should bear proportionate legal responsibility for harmful online content, but that such responsibility must be exercised within a legal framework that adequately safeguards the right to freedom of expression. By comparatively examining the regulatory approaches adopted in Nigeria and the European Union, this article evaluates the effectiveness of their respective legal frameworks and proposes a balanced approach capable of promoting accountability while preserving fundamental freedoms.
- The Legal Framework Governing Social Media Platform Liability
Freedom of expression is a fundamental human right that guarantees every individual the freedom to seek, receive, and impart information and ideas without undue interference. It is a cornerstone of democratic governance, promoting public discourse, political participation, and accountability. However, this right is not absolute. Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) permit lawful restrictions to protect the rights of others, public order, national security, and public morality. Similarly, in Handyside v United Kingdom, the European Court of Human Rights held that freedom of expression extends to ideas that “offend, shock or disturb,” while recognising that the right carries duties and responsibilities.
The rise of social media has significantly expanded the exercise of freedom of expression, enabling instant global communication. At the same time, it has accelerated the spread of harmful online content, including hate speech, misinformation, cyberbullying, terrorist propaganda, and defamation. This has raised an important legal question: should liability rest solely with the creator of unlawful content, or should platforms that host or fail to remove such content also be held responsible? In Delfi AS v Estonia, the European Court of Human Rights upheld the liability of an online news platform for defamatory user comments, confirming that platform liability may be justified in appropriate circumstances.
In Nigeria, section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees freedom of expression, while the Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (as amended) criminalises several forms of online misconduct but provides limited guidance on intermediary liability. By contrast, the European Union’s Digital Services Act (Regulation (EU) 2022/2065) imposes due diligence obligations on online platforms. This approach was reinforced in Glawischnig-Piesczek v Facebook Ireland Ltd, where the Court of Justice of the European Union held that platforms may be required to remove unlawful and equivalent content, demonstrating a more comprehensive approach to digital accountability.
- Comparative Analysis of Nigeria and the European Union
Nigeria and the European Union adopt different approaches to regulating the liability of social media platforms for harmful online content. Although both recognise the importance of protecting freedom of expression, they differ significantly in the obligations imposed on digital platforms and the extent of platform liability.
In Nigeria, the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees freedom of expression under section 39, subject to lawful restrictions. The Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (as amended) criminalises offences such as cyberstalking, identity theft, online fraud, and the dissemination of unlawful digital communications. However, neither the Constitution nor the Cybercrimes Act comprehensively regulates intermediary liability, leaving responsibility for unlawful content primarily with the individual who created or published it.
By contrast, the European Union has adopted a more proactive approach through the Digital Services Act (Regulation (EU) 2022/2065), which imposes due diligence obligations on online platforms, including transparency requirements, risk assessments, complaint mechanisms, and the prompt removal of illegal content. Rather than imposing blanket liability, the Act establishes responsibilities based on the nature and size of digital service providers.
Judicial decisions reinforce this approach. In *Delfi AS v Estonia*, the European Court of Human Rights upheld the liability of an online news platform for defamatory comments posted by its users, while in *Glawischnig-Piesczek v Facebook Ireland Ltd*, the Court of Justice of the European Union held that national courts may require platforms to remove unlawful and equivalent content. These decisions demonstrate the EU’s willingness to impose proportionate responsibilities on online intermediaries.
Overall, Nigeria adopts a largely reactive approach centred on prosecuting individual offenders, whereas the European Union places clearly defined obligations on digital platforms to prevent and address harmful content. Consequently, the EU framework provides greater legal certainty regarding intermediary liability, while Nigeria’s legal position remains comparatively underdeveloped.
- Balancing Digital Accountability with Freedom of Expression
The regulation of social media platforms requires a careful balance between promoting digital accountability and safeguarding the fundamental right to freedom of expression. While social media platforms have become indispensable tools for communication, education, commerce, and democratic participation, they have also facilitated the rapid spread of harmful online content capable of causing significant harm to individuals and society. Consequently, imposing legal obligations on these platforms is increasingly necessary to ensure a safer digital environment. However, such obligations must be proportionate and must not undermine the very right they seek to regulate.
A central question in this debate is whether social media platforms should be treated as publishers and therefore be held legally liable for all user-generated content. Imposing automatic liability would likely encourage excessive content moderation, as platforms may remove lawful speech merely to avoid legal sanctions. Such an approach could have a chilling effect on freedom of expression by discouraging legitimate public discourse and restricting access to information. On the other hand, granting platforms complete immunity from liability would enable the continued dissemination of unlawful content without adequate accountability. A balanced approach therefore requires liability to arise only where platforms fail to act after obtaining actual knowledge of illegal content or where they neglect statutory obligations designed to prevent foreseeable harm.
The European Union’s Digital Services Act provides a useful model by imposing due diligence obligations rather than blanket liability on online platforms. Through measures such as transparency reporting, risk assessments, and effective notice-and-action mechanisms, the Act seeks to protect users while preserving freedom of expression. Nigeria could adopt a similar approach by enacting comprehensive legislation that clearly defines the responsibilities of social media platforms, establishes transparent procedures for content moderation, and provides effective remedies for victims of harmful online content without encouraging arbitrary censorship.
Ultimately, achieving an appropriate balance requires recognising that neither unrestricted freedom of expression nor excessive regulation serves the public interest. The law should protect the rights of users to express themselves freely while ensuring that digital platforms exercise reasonable responsibility in preventing and addressing unlawful online content. Such a balanced regulatory framework would enhance public confidence in digital platforms and promote a safer and more accountable online environment.
Conclusion
The rapid growth of social media has transformed communication and public discourse while creating new legal challenges concerning harmful online content. This article has examined the legal frameworks governing platform liability in Nigeria and the European Union and demonstrated that, although both jurisdictions seek to protect freedom of expression, they adopt different regulatory approaches. Nigeria’s framework remains largely focused on individual offenders, whereas the European Union has introduced clearer obligations for online platforms through the Digital Services Act.
The analysis shows that an effective regulatory framework must strike an appropriate balance between protecting users from online harm and preserving the constitutional and international guarantees of freedom of expression. Neither complete immunity for platforms nor excessive regulation provides a satisfactory solution. Instead, the law should impose clear, reasonable, and proportionate obligations on platforms while safeguarding legitimate public discourse.
Accordingly, Nigeria should consider adopting a comprehensive statutory framework that clearly defines the responsibilities of social media platforms, establishes transparent content moderation procedures, and provides effective remedies for victims of harmful online content. Such reforms would strengthen digital accountability while ensuring that freedom of expression remains adequately protected in the digital age.
REFERENCE(S):
Cases
Delfi AS v Estonia App No 64569/09 (ECtHR, 16 June 2015).
Glawischnig-Piesczek v Facebook Ireland Ltd Case C-18/18 EU:C:2019:821.
Handyside v United Kingdom (1976) 1 EHRR 737.
Statutes
Constitution of the Federal Republic of Nigeria 1999 (as amended).
Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (as amended).
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services (Digital Services Act) [2022] OJ L277/1.
International Instruments
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).
Journal Articles
Frosio G and Geiger C, ‘Taking Fundamental Rights Seriously in the Digital Services Act’s Platform Liability Regime’ (2023) 29 European Law Journal.
Uwadi EC, ‘From Intermediary Liability to Intermediary Responsibility: A Juxtaposition of the EU and Nigerian Liability Regime for Internet Service Providers’ (2021) Journal of Media Law.
Books
Edwards L, Law, Policy and the Internet (Hart Publishing 2019).
Wilman F, The Responsibility of Online Intermediaries for Illegal User Content in the EU and the US (Edward Elgar Publishing 2020).
Official Reports
Council of Europe, Guide to Human Rights for Internet Users (Council of Europe Publishing 2014).
