In brief: media law and regulation in Nigeria

Media

Summarise the regulatory framework for the media sector in your jurisdiction.

The National Broadcasting Commission Act (the NBC Act) regulates the broadcasting sector in Nigeria. The NBC Act also established NBC, which is responsible for regulating the broadcasting industry. There is also the Nigeria Broadcasting Code (BC), which was issued by NBC in the exercise of its power under the NBC Act. The BC represents the minimum standard for broadcasting in Nigeria.

Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

Yes, the ownership of broadcasting networks is restricted. The NBC Act requires the NBC to satisfy itself when granting a broadcasting licence that the applicant can demonstrate to the satisfaction of the NBC that he or she is not applying on behalf of any foreign interest. The NBC is also prohibited from granting a licence to either a religious organisation or a political party. Foreign investors can therefore participate in broadcasting activities, provided that the majority of shares in a broadcasting company are held by Nigerians.

In terms of cross-ownership in the broadcasting industry, the NBC Act provides that a person is prohibited from having ‘controlling shares in more than two of each of the broadcast sectors of transmission’. Apart from the provisions in the NBC Act, there are no regulations regarding cross-ownership of media companies.

What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

To operate a radio, sound, television, cable or satellite station in Nigeria, an application in the prescribed form is addressed to the Director-General (DG) of the NBC requesting approval to purchase a set of application forms indicating the licence category and proposed location. If granted, the applicant would be required to purchase the application form at the cost of 50,000 naira and submit the completed application form to the DG. The form is accompanied by:

• a certificate of incorporation;
• a certified copy of the company’s memorandum and articles of association;
• an engineering design of systems, including a feasibility study;
• a letter of undertaking to abide by the terms of the licence; and
• a letter of reference from the company’s bankers.

Section 9(1) of the NBC Act sets out the criteria used by the NBC in the grant of a broadcast licence and these require the applicant to be a corporate body registered in Nigeria or a broadcasting station owned, established or operated by the federal, state or local government. The NBC is also required to satisfy itself that the applicant is not applying on behalf of any foreign interest. If the NBC is satisfied with the application, it will make a recommendation through the Minister of Information to the President for the grant of a licence.

The licence fee for an initial term of five years is as follows:

There is no specific timescale for the grant of a licence.

Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

The NBC Act and the BC regulate the broadcasting of programmes and the minimum local and foreign programme content. Under the BC, foreign content is permissible provided it conveys intrinsic relevance to the education, information and entertainment of the Nigerian citizenry. The BC stipulates that a broadcaster shall ensure that the selection of foreign programmes reflects the development needs of the Nigerian nation and ensure respect for the Nigerian cultural sensibilities. In addition, with the exception of special religious and sports programmes or events of national importance, Nigerian broadcasters shall not relay foreign broadcasts live on terrestrial platforms.

In terms of characterising how a broadcasting programme may qualify as local content, the Addendum to the 6^th Edition of the BC (the Addendum) issued by the NBC in 2020 provides that:

• the producer of the programme must be Nigerian, residing in Nigeria;
• the directors of the programme are Nigerian; or
• the authors of the programme are Nigerian.

In addition, it goes on to provide that:

• 75 per cent of the leading authors and major supporting cast, including voice actors, or on-screen presenters appearing in the programme are Nigerian;
• a minimum of 75 per cent of programme expenses and 75 per cent of post-production expenses are paid for services provided by Nigerians or Nigerian companies, which may be obtained from programme commission, licensing, advertising-funded programming grants, co-funding arrangements, commercial sponsorship and financing initiatives, all of which must not be subject to ‘foreign ownership or arbitrary interference’; and
• where the production is a collaboration with a foreign entity, the producer shall ensure that Nigeria production locations, talents, skills, sets, etc, constitute at least 75 per cent of the entire production.

The broadcaster is required by the BC to ensure that all productions targeted at the Nigerian market must meet a minimum of 60 per cent local content requirement.

The local content requirement applies to all categories of programming including but not limited to fiction, series, serials, films, documentaries, arts and educational programmes, news, sports events, games, advertising, teleshopping or teletext services. Last, a broadcaster is required by the local content rules in the Addendum to source its local content from independent producers where it is not a direct production of the broadcaster. Failure to comply with the local content rules is a Class B breach under the BC and will attract sanctions.

How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

Broadcast media advertising is regulated by the NBC Act, the BC, the Advertising Practitioners Council of Nigeria Act (the APCON Act), the Nigerian Code of Advertising Practice and Sales Promotion and the APCON Vetting Guidelines (the Vetting Guidelines). Under the Vetting Guidelines, any broadcast media advertising material must be submitted for approval by the Advertising Standards Panel before it is aired.

Online broadcasting is subject to the BC to the extent that it is transmitted by an online or web broadcaster operating in Nigeria, and it shall additionally conform to the provisions of the BC on programming standards.

Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

Beyond the local content obligations mandated by the BC, there are no other obligations that specify the basic package of programmes, and (or) in relation to must-carry. At present. there is no mechanism for financing local content obligations in Nigeria. However, there is a local content development fund into which a subscription broadcaster shall make a mandatory payment, where it fails to comply with its local content obligations regarding its subscription service.

Is new media content and its delivery regulated differently from traditional broadcast media? How?

Internet radio and broadcasting streaming signals from and into Nigeria requires a licence from NBC. In practice, most of the internet radio stations operating in Nigeria already have a radio (or another broadcast) licence issued by NBC. The BC also requires the local content for this category of licence to be 60 per cent. The regulations and conditions governing news, programmes, advertising and sponsorship in relation to other forms of broadcasting or broadcast licence are also applicable to internet broadcasting.

When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

The first phase of the digital switch over (DSO) was successfully launched in five states and the Federal Capital Territory in Nigeria between April 2016 and February 2018. According to the timeline released by the NBC in March 2021, the second phase of the DSO will commence in Lagos state on 29 April 2021 and be extended to four other states by 12 August 2021. The third and final phase of the DSO will commence in December 2021 and is expected to be concluded by 8 December 2022.

The Nigerian Communications Commission (NCC) is proposing that the radio frequencies freed up should be reallocated to mobile broadband.

Does regulation restrict how broadcasters can use their spectrum?

Yes. Broadcasters are required to use the spectrum assigned to them in accordance with the technical specifications contained in the licence conditions.

Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

The BC incorporate some provisions that are consistent with media pluralism. Some of these provisions are that the BC requires broadcasters to ensure that all sides to any issue of public interest are equitably presented for fairness and balance and be above inherent biases, prejudices and subjective mindsets. In addition, the BC provides that panellists in discussion programmes are expected to reflect various viewpoints, and for political broadcasts, broadcasters are to accord equal airtime to all political parties or views, with particular regard to the duration and the particular time within which such programmes can be broadcasted during political campaign periods.

Provide a summary of key emerging trends and hot topics in media regulation in your country.

The Minister of Information and Culture, the supervising Minister of the NBC, has stated on several occasions that the federal government of Nigeria (FGN) intends to enact legislation that would subject social media and over-the-top (OTT) media services to the regulatory purview of the NBC; however, as at the time of this writing, no such legislation sponsored by the Executive has been presented to the National Assembly for consideration. Although it is noteworthy that the Addendum issued in 2020 by the NBC made some far-reaching provisions that have an implication for operators of social media, OTT and internet access platforms.

This intention by the FGN to regulate social media was amplified when on 4 June 2021, the Minister of Information and Culture announced the suspension of Twitter, the micro-blogging platform, in Nigeria. In making this announcement, the Minister cited the persistent use of the platform for activities that are capable of undermining Nigeria’s corporate existence, and thereafter directed the NBC to immediately commence the process of licensing all OTT and social media operations in Nigeria. Although it is not clear what power the Minister exercised in making this announcement and effecting the subsequent suspension of Twitter in Nigeria, the FGN in court documents filed in its defence to the legal challenge of the suspension before the Economic Community of West African States Court of Justice, contended that the Minister exercised certain powers under the Penal Code (Northern States) and in the Criminal Code Act that authorises the Minister to ban the use, establishment, ownership and operation of any medium for the dissemination of information in the public interest. These provisions according to the FGN served as the legal authority for suspending Twitter, although this suspension was since lifted on 13 January 2022. This case remains ongoing.