Court nullifies amended broadcasting code, says NBC has no power to prohibit exclusive contents

The federal high court in Lagos has declared illegal the amended 6th edition of the national broadcasting code.

On August 4, 2020, Lai Mohammed, the minister of information, had launched the amended 6th edition of the code which has been criticised by industry stakeholders.

The code seeks to regulate content exclusivity, enforce content sharing and empower the National Broadcasting Commission (NBC) to determine prices at which content is sold to sub-licensees by rights holders.

In his ruling, on Thursday, Ambrose Lewis-Allagoa, the presiding judge, said the amendment of the broadcasting code are ultra vires, incompetent, null and void and perpetually restrained the NBC from implementing the document.

The court also declared that the NBC does not have the power to prohibit exclusivity and compel sub-licensing of privately acquired rights to television content as such is against the constitution and the copyright act.

The ruling was delivered in a suit filed by Femi Davies, a Lagos-based journalist and movie producer, who had approached the court contending among other things that the amendment sought by the NBC to the 6th edition of the code violates his rights to own intellectual property and exercise exclusive rights on such.

On its part, the NBC submitted that the amendment to the broadcasting code was done to protect local operators, promote creativity and maximise local content via the anti-trust provisions contained in the amendment.

The commission also claimed that the amendment to the code was aimed at stimulating growth in the broadcasting industry by attracting foreign investment.

But Davies argued, among other things, that if allowed, the amendment would greatly violate his right to a fair hearing and asked the court to uphold his six reliefs as set out in his originating summons.

The reliefs include, “a declaration that the NBC lacks the requisite vires to prohibit exclusivity on privately acquired intellectual property right in program content of a right-holder viz-a-viz the salient provisions of the constitution and the Copyright Act.

“A declaration that the commission acted ultra-vires so far as it sought to regulate the practice of advertising in Nigeria contrary to the provisions of the extant Advertising Practitioners (Registration, etc) Act, 2004.

“A declaration that the commission acted ultra vires when it sought to retroactively compel right holders of programme content to compulsorily share extant rights acquired under existing licence under the proposed amendment to the 6th edition of the NBC code.

“A declaration that the commission acted ultra vires when it sought to retroactively compel right holders of programme content to compulsorily share extant rights acquired through a partnership and /or joint venture with an investor under the proposed Amendment to NBC Code.”

In his judgment, Lewis-Allagoa ruled that acquisition of exclusive rights to broadcast a particular programme is an investment for returns and no one should be forced to surrender the same when it is lawfully acquired.

“I am in agreement with the plaintiff counsel that the said proposed amendment is a violation of the principle of fair hearing and natural justice,” the judge said.

“I have determined the questions in the originating summon in favour of the plaintiff.

“For reasons given, consequently, all the reliefs sought by the plaintiff are granted as prayed. That is the judgment of the court.”