By Adedapo Adesanya
Socio-Economic Rights and Accountability Project (SERAP) has filed a lawsuit against the Central Bank of Nigeria (CBN) over its proposed Know-Your-Customer (KYC) social media policy.
The suit filed on behalf of SERAP by its lawyers, Mr Kolawole Oluwadare and Ms Blessing Ogwuche, said “the failure to delete the patently unlawful provisions in the Central Bank of Nigeria (Customer Due Diligence) Regulations directing banks to obtain information on customers’ social media handles for the purpose of identification.”
The CBN had last month issued a circular mandating banks and other financial institutions to implement and comply with the mandatory provisions on customers’ social media handles in the CBN Regulations. This raised a late of complaints from Nigerians as well as government agencies.
In the suit number FHC/L/CS/1410/2023 filed last Friday at the Federal High Court in Lagos, SERAP is seeking: “an order of mandamus to direct and compel the Central Bank of Nigeria to withdraw its directive dated 20th June 2023 to banks and other financial institutions to obtain information from customers’ social media handles.”
SERAP, through the suit, is also seeking: “an order of mandamus to compel the CBN to delete the unlawful provisions of Section 6 of its Customer Due Diligence Regulations, 2023 for being inconsistent with Section 39 of the Nigerian Constitution 1999 [as amended] and Article 9 of the African Charter on Human and Peoples’ Rights.”
SERAP is also seeking: “an order restraining the CBN from carrying out or giving effect to the unlawful provisions of Section 6 of its Customer Due Diligence Regulations, 2023, directing banks and other financial institutions to obtain information from customers’ social media handles.”
In the suit, SERAP is arguing that: “The mandatory requirement of social media handles or addresses of customers does not serve any legitimate aim. Such information may be used to unjustifiably or arbitrarily restrict the rights to freedom of expression and privacy.”
SERAP is also arguing that, “Unless the reliefs sought are granted, the CBN will implement and enforce the unlawful directive in contravention of citizens’ rights to freedom of expression and privacy.”
According to SERAP, “There are other means of identification such as passport, driver’s licence, Bank Verification Number (BVN), and Tax Identification Number (TIN), which banks and other financial institutions already require their customers to provide.”
SERAP is also arguing that, “The additional requirement of obtaining details of a customer’s social media handle or address fails to meet the requirements of legality, necessity, and proportionality.”
The group further argued that, “The fact that there are sufficient means of identification for CBN, banks and other financial institutions to rely on to meet the requirement of Know Your Customer also heighten concerns of overreach, and confer far-reaching discretion on banks and financial institutions.”
“Obtaining information on customers’ social media handles or addresses as means of identification is more intrusive than necessary.”
“According to Section 6(a)(iv) of the CBN Regulations, banks and other financial institutions ‘shall identify their customer and obtain information on the social media handle of the customer.’ Section 6(b)(iii) contains similar provision.
“The purported mandatory requirement would inhibit Nigerians from freely exercising their human rights online. If obtained, such information may also be misused for political and other unlawful purposes.
“The CBN Regulations and directive to banks and other financial institutions would impermissibly restrict the constitutional and international rights to freedom of expression, privacy and victims’ right to justice and effective remedies.
“Requiring social media handles or addresses of customers as a means of identification would have a disproportionate chilling effect on the effective enjoyment by Nigerians of their rights to freedom of expression and privacy online.
“The requirement of necessity implies an assessment of the proportionality of the grounds, with the aim of ensuring that the excuse of ‘regulations on customer due diligence’ is not used as a pretext to unduly intrude upon the rights to freedom of expression and privacy.
“The CBN Regulation does not demonstrate how the use of social media handle or address as a means of identification would serve to improve banks and other financial institutions’ ability to implement and comply with the laws and regulations relating to customer due diligence.
“The Directive by the CBN, which does not in any event carry the force of law, also fails to provide any explanation as to how social media handles or addresses can facilitate compliance with regulations relating to customer due diligence.
“Obtaining the details of customers’ social media handles or addresses would unduly interfere with the rights to freedom of expression and privacy. It would also be disproportionate to any purported legitimate aim that the CBN seeks to achieve.
“The cumulative effect of any attempt to access details of customers’ social media handles or addresses would be to undermine the letter, substance and spirit of the rights to freedom of expression and privacy of Nigerians.
“The effective enjoyment of these fundamental rights constitutes a fundamental pillar for building a democratic society and strengthening democracy.
“The positive obligations of Nigeria to ensure the rights to freedom of expression and privacy will only be fully discharged if individuals are protected against violations by institutions like the CBN.
“The Nigerian Constitution guarantees in Section 39 the right to freedom of expression and in Section 37, the right to privacy.
“Article 19 of the International Covenant on Civil and Political Rights and Article 9 of the African Charter on Human and Peoples’ Rights also guarantee the right to freedom of expression. Article 17 of the Covenant also guarantees the right to privacy.
“In particular, Article 19(1) of the Covenant establishes the right to freedom of opinion without interference. Article 19(2) establishes Nigeria’s obligations to respect and ensure ‘the right to freedom of expression,’ which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers.
“Under article 19(3), restrictions on the right to freedom of expression must be ‘provided by law’, and necessary ‘for respect of the rights or reputations of others’ or ‘for the protection of national security or of public order (ordre public), or of public health and morals.
“The principles of legality, necessity, and proportionality apply to the right to privacy in the same manner as they do to freedom of expression and other fundamental freedoms.
“Restrictions to the rights to freedom of expression and privacy that do not comply with the elements of legality, legitimate purpose, and necessity and proportionality shall be deemed unlawful,” it read in part.
No date has been fixed for the hearing of the suit.
Modupe Gbadeyanka