NBC Acted Beyond Its Powers in Seeking to Regulate Advertising Practice – Court

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THE Lagos Division of the Federal High Court has ruled that the National Broadcasting Commission (NBC) acted beyond its powers by seeking to regulate the practice of advertising in Nigeria.

Justice Ambrose Lewis-Allagoa, in a judgement delivered on May 25, 2023, held that the NBC lacks the power to prohibit exclusivity on privately acquired intellectual property rights in programme contents of a right holder.

He further held that the proposed amendment to the 6th Edition of the NBC code is unconstitutional and restrained the Commission from implementing it. The amended NBC code, amongst other things, prohibited exclusivity of sporting rights and raised the fine for hate speech to N5 million.

Despite opposition from several bodies, the Nigerian government insisted it would go ahead with the implementation.

A plaintiff, Femi Davies, challenged the code in suit FHC/L/CS/1152.2020 with the NBC as the defendant. Mr Davies argued, among others, that if allowed, the amendment would violate his right to a fair hearing. He prayed the court to uphold his six prayers as set out in his originating summons.

The plaintiff’s reliefs include a declaration that the Commission lacks the power to prohibit exclusivity on privately acquired intellectual property right in programme content of a right-holder vis-à-vis the salient provisions of the constitution and the Copyright Act.

“A declaration that the commission acted ultra-vires in 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 right 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 right acquired through a partnership and /or joint venture with an investor under the proposed amendment to NBC Code.

“An order setting aside the amendment of the NBC Code and an order of perpetual injunction restraining the NBC from implementing the Amendment to the NBC Code.

In his judgment, the court granted all the plaintiff’s reliefs.

Mr Lewis-Allagoa held: “I agree with the submission that acquisition of exclusive rights to broadcast a particular programme is an investment for returns and by virtue of the above-stated provisions, no one should be forced to surrender 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 proposed amendment purports that the defendant, NBC, shall without any fact-finding or recourse to the other party place the advertising agency on its blacklist, solely based on the complaint of a media house to the defendant and the defendant acting has the authority to itself shall pass its verdict without hearing the other parties.

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

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

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