Government to ReviewAmended Nigeria Broadcasting Code Over Controversies

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Prof. Yemi Osinbajo, Vice President, Federal Republic of Nigeria
Prof. Yemi Osinbajo, Vice President, Federal Republic of Nigeria

The federal government of Nigeria has said it is set to review the amended Nigeria Broadcasting Code (sixth edition NBC Code) issued by the Minister of Information and Culture and the National Broadcasting Commission (NBC) as a result of the controversies that have trailed certain Sections of the amended Code.

The nation’s Vice President, Prof. Yemi Osinbajo, disclosed this during a virtual chat with Facebook’s Vice President of Policy and Communication, Nick Clegg, on September 18, 2020.Prof. Osinbajo said there is activity around trying to take a second look at the amendment as there were complaints that sections of the Code are anti-competitive.

The Vice President said: “Basically, what it [NBC Code] says is that if you have a licensed product for TV or film, you’re expected to share it with other platforms. I understand the argument of those who say this is a violation of copyright and intellectual property, which is a very strong point.”

“And this is why I think we are going to take a second look at it and see where there are ways of moderating it to be more acceptable and so as not to stifle the work of very hard-working, creative people.”

Prof. Osinbajo pointed out that changes in tech space is so fast that frequently regulators are really just chasing after the innovations to see how best to regulate without stifling companies.

He also said the government can practically do nothing without the private sector as everything government is doing is to create the environment that will enable the private sector take leadership and do what it needs to do to expand the sector.

The amended Nigeria Broadcasting Code (sixth edition) prescribe, among others, extensive provisions on acquisition of sports rights which includes mandating rights owners to live foreign sporting events to offer the rights to broadcasters on (i) Satellite DTH; (ii) Multipoint Microwave Distribution System (MMDS); (iii) Cable (Fibre Optics; (iv) DTT (Terrestrial); (v) Internet; (vi) Mobile; (vii) Internet Protocol Television (IPTV); and (viii) Radio.

The amended Code also prohibits broadcasters or licensees from entering into any form of agreement, concerted practices or taking any decision which has the objective of preventing competition in the broadcasting industry. It expressly prohibits broadcasters or licensees from acquiring any broadcasting rights in such a manner as to exclude persons, broadcasters or licensees in Nigeria from sub-licensing same. A broadcaster who fails to comply with these provisions of the Code can be liable to a fine not below N10,000,000 (ten million Naira) alongside other sanctions.

The NBC Code as amended also demands that a broadcaster is to ensure access by all Pay-TV platforms to premium content in the sports and news genre and the Code has outlined factors to be taken into consideration in determining charges for access.

The Code also makes broadcast of fake news and hate speech offences with attracting fines of up to N5 million from an initial N500,000.

Following the amendment to the Code, a film production company, Oakfil Productions Limited, dragged the National Broadcasting Commission (NBC), before a Federal High Court in Lagos over the matter saying the reported amendment to the broadcasting code was an act of illegality and asked the court to compel NBC to comply with the procedure prescribed by the National Broadcasting Commission Act in making amendments to the code.

Oakfield also asked the court to declare that NBC acted ultra vires, improperly, in bad faith, and in gross abuse of the powers vested in it by the National Broadcasting Commission Act when it allowed its management to make the sixth edition of the Nigeria Broadcasting Code.

It prayed the court to issue an order restraining the NBC from acting on the code or giving effect in any manner whatsoever to the said sixth edition of the Nigeria Broadcasting Code.

In the same vein, the opposition Peoples Democratic Party (PDP) caucus in the House of Representatives also dragged the Minister of Information and Culture, AlhajiLai Mohammed and the NBC before the Federal High Court in Abuja to invalidate the controversial amended broadcasting code joining the Attorney General of the Federation and Minister of Justice, AbubakarMalami, as the defendant in the suit.

The suit was initiated by the PDP caucus leader Kingsley Chinda; his Deputy ChukwumaOnyema; Caucus Deputy Whip AjibolaMuraina; Mark Gbillah; Tyough Robert; Bulus Solomon; RimamndeShawuluKwewum; Yusuf Ayo Tajudeen and OnyemanChukwuma.

In the suit filed on their behalf by Barrister SegunFiki and Barrister JohnmaryChukwuasiJideobi, the lawmakers, among others, asked the court to determine whether by the provisions of Section 36 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Amended 6th Nigeria Broadcasting Code enacted/issued by the Minister of Information and Culture which created the purported offences of “hate speech” and “fake news” and correspondingly purported to have imposed penalties is not unconstitutional, null and void.

They are also asked the court to determine whether or not, having regard to the extant provisions of Sections 6 and 23 of the National Broadcasting Commission Act Cap. N11 LFN 2004, the Minister of Information and Culture has the statutory power to issue Broadcasting Code and whether the 6th Nigerian Broadcasting Code purportedly issued is not a nullity and therefore void.

They also asked the court to determine whether, having regard to the extant provisions of Sections 4 (1), (2), (3) & (4), 47 & 58(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Order 14 of the Standing Rules of the House of Representatives (Procedure on Subsidiary Legislation), the NBC and the Minister of Information and Culture have the power or vires to enact, issue and give effect to or enforce the Amended 6th Nigeria Broadcasting Code without prior ratification by the House of Representatives of the National Assembly, and if not, whether the Minister of Information and Culture’s enactment/issuance and application of the said Amended 6th Nigerian Broadcasting Code is not a usurpation of the legislative powers expressly conferred on the legislature by the 1999 Constitution of the Federal Republic of Nigeria (as amended).

They prayed the court to declare the Amended 6th Nigerian Broadcasting Code unconstitutional, null and void especially since the said offences and penalties set out in the code have not been defined and/or prescribed in any written law by the National Assembly of Nigeria.