Court Rules That NBC Can’t Regulate Advertising In Nigeria

The Federal High Court sitting in Lagos has held that the Nigerian Broadcasting Commission (NBC) acted beyond its powers in seeking to regulate the practice of advertising in Nigeria contrary to the provisions of the extant Advertising Practitioners (Regulation) Act of 2004.

The court also declared that NBC lacks the power to prohibit exclusivity on privately acquired intellectual property right in programme contents of a right-holder viz a viz the salient provisions of the constitution and the copyright act.

Justice Ambrose Lewis-Allagoa also set aside the proposed amendment to the 6th Edition of the NBC Code for being ultra vires, incompetent null and void, and perpetually restrained the Commission from implementing it.

The court delivered the judgment, in a suit filed by a Lagos based journalist, Mr Femi Davies.

Mr Davies had approached the court contending among other things that the amendment sought by the defendant to the 6th edition of the Nigerian Broadcasting Code is in violation of his rights to own intellectual property in Nigeria over which he can exercise exclusive rights.

He had also argued that the amendment if allowed will greatly affect business and the development of the country as a whole as it will frustrate tonnes of investment and hard work of many years.

NBC on its part had submitted that the amendment to the 6th broadcasting code was done to protect local operators, promote creativity and maximize local content due to the antitrust provisions contained in the amendment.

It also claimed that the amendment was intended to among other things stimulate growth in the industry and attract foreign investment which would benefit the media industry generally.

But the plaintiff, Mr Davies argued amongst other things, that if allowed, the amendment would greatly violate his right to a fair hearing.

He asked the court to uphold his six reliefs as set out in his originating summons.

The plaintiff’s 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 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, 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 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 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 .”