IDEAs 12th May 2023
NBC’s power to impose fines struck down: what IDEAs issues arise?
Sandra Ezekwesili was full of beans and had ‘raised shoulders’ over the decision of the Federal High Court striking down the power of the National Broadcasting Commission to impose fines as she welcomed Ayo Obe for IDEAs this week, and Ayo’s guest, Lanre Arogundade, the Executive Director of the International Press Centre, Nigeria.
Ayo started by asking Lanre to briefly summarize what it was that the Federal High Court had pronounced on when it set aside the
N500,000 fines that the National Broadcasting Commission had imposed on about 49 broadcast stations. Lanre explained that the position of the Federal High Court Abuja was that the imposition of fines by the NBC was a violation of the Constitution, and that only the courts could exercise such powers, because the alleged offences border on criminality and only the courts could make a pronouncement on that.
Ayo asked Lanre where this leaves the Broadcasting Code? Could broadcasters now abandon it?
Lanre replied that broadcasters would not leave the Broadcasting Code aside, as the court said it remains in force. As a matter of fact, the NBC remains the regulator for the broadcasting industry, and he did not think that any journalist or media professional would object to that, because regulation is part of media practice. The difference was that the NBC’s was statutory regulation coming from the government, as opposed to the self-regulatory mechanisms that the industry itself had put in place, such as the Code of Ethics for Journalists in Nigeria.
Ayo asked, if the Code remained intact but the NBC could not impose fines, what other non-criminal sanctions or tools could it use to enforce the code?
Lanre said that the NBC had a number of options, for example it could issue warnings to stations that it believes have breached the Code. Ayo said that while many celebrated the Federal High Court decision, there was concern that it may turn out to be a Pyrrhic victory because the NBC still had the power to grant or withhold licences from broadcasters. Lanre said that the only condition under which the NBC could withdraw or suspend a station’s licence would be where the licence fees were not paid, or in an extreme case, where a broadcast had led to violence, but we had not seen that in Nigeria, and he did not expect that broadcasters in Nigeria would go to that extent. He even anticipated that journalists would be more cautious.
Although the NBC was planning to appeal against the judgment, the judgment was an opportunity for the NBC to look inwards and work with other media stakeholders on how to reform the system. The position of the industry had always been that there might indeed be instances where a broadcast breached the rules and might require a fine or other form of sanction, but there should be the right to appeal. As Ayo mentioned the right to be heard, Lanre said that the problem was that the NBC would just write to a broadcaster, and then it would just write and impose a fine, giving no room for any defence to be offered.
Ayo asked whether that wasn’t the problem; that there was no procedure. At least if a matter had to be taken to court so that sanctions would be imposed, the other party would have a chance to be heard in its own defence. Lanre agreed that there needed to be a structure, even within the NBC itself. He noted that it has a Council, and it could have a procedure whereby it could notify a broadcaster that it had found it guilty of this offence, but offer a period for a broadcaster to appeal or state its own side of the case, so that at every point justice would be seen to have been done since as lawyers say, justice must not only be done, it must also be seen to have been done. Ayo complemented that with the legal maxim ‘audi alterem partem’ – hear the other side.
Lanre said that the point made by the court was that the NBC was the complainant, the prosecutor and the judge in its own case, was the same point that the industry had been making all along. Ayo pointed out that people could complain to the NBC so it might not be the complainant. She drew attention to the newly established National Media Complaints Commission, which was an entirely non-governmental affair, to which anybody, including members of the public and even the Ministry of Information if it were ready to come down from its high horse, or any government body could also make complaints. She asked whether Lanre felt the NMCC could make a difference to what many had described as ‘excesses’ by the media.
Lanre agreed that the NMCC had a role to play, being a body established by umbrella media professional bodies; the Newspaper Proprietors Association of Nigeria, the Nigerian Guild of Editors, the Nigerian Union of Journalists, the Broadcasters of Nigeria – because it meant that the media was saying that it was ready to regulate, and that if people had complaints, the NMCC would look into them and make recommendations which could even include sanctions in very serious cases, such as asking a news medium to discipline a journalist who had behaved in a way that breached professional ethics, such as publication of fake news. He said that these were also things that the NBC could do, such as asking for retraction of fake stories and publication of corrections or apologies. The whole idea was that sanctions and punishments should only brought in in extreme cases, because the NBC ought also to be interested in the survival of the broadcast media, whereas some of the fines it had been imposing could affect the existence of some of the affected broadcasters.
As for the NMCC, it has a role to play in curbing excesses because anyone could bring a complaint to it. During the last election campaign, some politicians had issues with some media outlets. Now, they would be able to go to the NMCC as well as the NBC. What was to be frowned upon was when people took the law into their own hands or use extra-judicial measures just because of a desire to punish a journalist.
Following that train of thought, Ayo observed that the regime of fines by the NBC, to which the FHC has now put an end, was only one manifestation of a growing tendency to use the criminal law over the exercise of free speech. Ordinary citizens who should normally sue for defamation in a civil suit now found it more satisfying to resort to criminal complaints under the Cybercrimes Act if the matter they are complaining of had come over the Internet. It was as though those who complained of being defamed were happier if they could punish the person by getting them locked up, than suing for money in a civil case. She asked Lanre what he thought was behind this trend?
Lanre deprecated the taking of such criminal measures under the provisions against internet bullying and stalking in the Cybercrimes Act. He referred to a Senator who complained of something published by WikiTimes – a newspaper in the North East – but instead of going to court, he lodged a criminal complaint and had the publisher picked up by the police. This was not right, and the media needs to have a conversation with the Nigeria Police about how they react in such cases, because the legislation ought not to be used to settle scores. If something wrong is published about one, one has the right to seek apology and retraction prominently displayed. If the news medium does not do that, or the damage has gone beyond repair, one could go to court and let one’s lawyer sue formally. But those aggrieved should stop using laws as a back door channel to punish journalists and individuals.
Lanre said that another worrying trend was the invocation of the Anti-Terrorism Act, because under it, one could be put into detention for three months without trial, a period that could be renewed. This was another very easy way to punish journalists and critics of government.
Ayo asked how worried the media and Nigerians ought to be about this, given that there is supposed to be a Constitutional guarantee of freedom of expression – how could it be enforced and upheld?
Lanre said that although the courts had confirmed the constitutional guarantee on freedom of expression, what the profession was looking for was a constitutional amendment to specifically guarantee the freedom of the press and also an amendment to insulate state owned media from the control of the government. For example in Ghana, the editors and managers of state media were not to be appointed by the government, but are instead appointed by the National Mass Media Commission of Ghana. Something similar could be enacted for Nigeria – for example the NMCC – so that it would have constitutional powers. Generally, Nigeria needs stronger express constitutional protections for freedom of speech, press freedom and even access to information.
Ayo asked about the valid concerns that people had, particularly about social media. Weren’t some of the powers government sought to exercise necessary in the face of some of the falsehoods published and circulated on social media, which could be published from anywhere, and by anybody? She suggested that though we need to find a balance between using a sledgehammer to crush an ant and allowing necessary freedoms, it seemed as though that balance was eluding us.
Lanre agreed that the balance was eluding us, and that we need to find a way of having the social media space regulated, but in such a way that the right media are targeted. The problem with the bills that have been put forward to regulate social media as to hate speech and fake news, is that they seek to tie conventional media up under the same restrictions. He noted that the laws do not seem to take note when it is government or politicians who spread falsehood or even hate speech, and that the conversation needed to cover this problem as well. Ayo said that unfortunately, in such cases, it was still the media outlet that got the hammer, as had been seen in recent cases!
Ayo thanked Lanre for being the guest of IDEAs today, and noted that the discussion had not been able to wipe the smile off Sandra’s face. Sandra laughed that her shoulders are still up and thanked Lanre and Ayo for the discussion.
What do you think? Are you happy that the powers of the NBC have been restricted, or are you apprehensive about the media’s ability to regulate itself? Why not post your views, or join the discussion below?