Court Nullifies 6th NBC Code

Olushola Okunlade Writes

On Thursday, the Federal High Court sitting in Lagos declared illegal the 6^th edition of the National Broadcasting Code issued by the National Broadcasting Commission (NBC).

In reaching his decision Justice Ambrose Lewis-Allagoa said the proposed amendments 6^th Edition of the National Broadcasting Code is ultra vires, incompetent null, and void and perpetually restrained the NBC from implementing the document.

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

The ruling was in a suit filed by a Lagos-based journalist and movie producer, Mr. Femi Davies, 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.

Davies also contended that the amendment, if allowed, will negatively impact business and the development of the country, as it disincentivizes investment and discourages hard work.

On its part, NBC had submitted that the amendment to the 6th broadcasting Code was done to protect local operators, promote creativity and maximize 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 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 rights acquired under existing license 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.

“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, Justice Lewis-Allagoa held: “I agree with the submission that acquisition of exclusive rights to Broadcast a particular program is an investment for returns and by virtue of the above-stated provisions, 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 proposed amendment purports that the defendant NBC shall without any fact-finding or recourse to the other party place the advertising agency on its black list, 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 summon in favor 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.”