Opinion

Here’s what you might have missed about NBC’s 6th amendment

 

Bryan Onoja

The 6th edition of the Nigeria Broadcasting Code (NBC), has since its release, generated mixed reactions across various platforms.
Sieving through the noise and having an in-depth look at the amendments, the underlying objectives are nothing short of note-worthy and are giant strides in setting the tone for a broadcasting industry that fosters competition, prohibits fake news and hate speech, promotes local content, and increases advertising revenue for indigenous content producers and broadcast stations.
The NBC Code, the minimum standard of broadcasting, provides regulations for content producers and broadcasters and ultimately ensures that more jobs are created within the broadcasting industry with a significant increase in local content production and commerce which will potentially result in an increase in foreign revenue.
In 2017, a stakeholders’ consultative forum was held. The forum which had Information Ministry representatives and over sixty industry stakeholders had as its objective, the discussion of policy reforms, and amendment of the Code. The output from that forum was subjected to due process and a final amendment before it was published.
While most of the focus and attention has been on the exclusivity, sublicensing and anti-competition clauses fueled by the perceived impact on certain stakeholders, it has come at the expense of disregarding other clauses that herald real and positive benefits for local creatives, content producers and broadcasters.

Web/Online Broadcasting

The rise in technological advancement has heralded an increase in new broadcast formats within the industry, leveraging technology and harnessing interconnectivity to generate original and user made content. We only have to consider the rise of streaming services like Netflix, Disney, Hulu, Iroko TV and others, who have leveraged technology and existing policies to set up global entities who are for all intents and purposes broadcasters but exist outside the codes that apply to established format broadcasters in certain regions like Nigeria where the regulations have not caught up to new trends.
Regulators across the world have had to adjust their broadcast codes to account for new platforms and formats. Examples include:
Singapore – The Infocomm Media Development Authority (IMDA) Content Code For Over-the-Top, Video-on-Demand And Niche which issued a code of practices for OTT and video-on-demand services to follow from 1 March, 2018. The code requires service providers to display the ratings and the elements in the content, including theme, violence, nudity, sex, language, drug use etc. The code also prescribes do’s and don’ts for the service providers.
Turkey – The Radio and Television Supreme Council (RTUK) Regulation on the Presentation of Radio, Television and On-Demand Broadcasting on the Internet (Turkey Regulation), 1 August 2019 published regulations, which aims to regulate content being broadcast on the internet.
Australia – The Broadcasting Services Act, 1992 (BSA) is the principal legislation governing the OTT sector. It is regulated through a complaints-based mechanism introduced on 1 January 2000 known as the online content co-regulatory scheme. Schedule 5 (for content hosted outside Australia) read together with Schedule 7 (for content with an ‘Australian connection’) of the BSA, lay down detailed guidelines on the kind of content which may be hosted online.
These adjustments seek to address the following:
Compliance with regulator codes and guidelines
Adaptation of the codes to new formats and the resultant loopholes in the existing code
The recognition of new formats by regulators gives rise to the need to ensure that they are held to the same standards as traditional broadcasters. These standards include the rigorous verification of content and liability for the proliferation of fake news and its resulting implication. The scarring implication of fake news cuts across various aspects of a people’s communal life. From religion to faith, business to politics, the effects are damaging.
Of particular worry is the impact of fake news on national security. One such example is the video that claimed that President Muhammadu Buhari, who suffered illness and long absences in his first term had died and had been replaced by a Sudanese double. And while the President has severally denounced this claim, there remains doubts in many corners. Such is the impact of fake news.
Occurrences like the example above, justifies NBC looking inwards to come up with viable solutions that will stem the rise in fake news and hate speech.
One such solution is Section 2.12.7.1 of the amended Code, which has mandated that all “content on web/online platforms shall conform to the provisions of the Code on programming standards, especially as it relates to hate speech and fake news.”
By making web/online owners bear liability for every content on their platform, and ensuring that there are sanctions in the event of a breach of the provisions of the Code, the Nigerian Broadcasting Commission finally has a firm grip on the spread of hate speech and fake news, while tightening loopholes on plummeting programming standards.

Character of Local Content, Production of Advertising for Local Goods and Services & Unpaid Advertising Rates

Another high point of the amended NBC Code is Section 3(15) which covers the Character of Local Content. Prior to its amendment, Section 3 of the NBC Code merely prescribes that broadcasters promote Nigerian content by producing and projecting the Nigerian Life within and outside the country. This unspecificity gave rise to the misapplication of the rules aimed at investment and development in local content but instead allowed loopholes for the production of content in jurisdictions outside Nigeria.
The amendment to the NBC Code succinctly captures the exact percentage that must be included before a programme can qualify as local content. It mandates broadcasters to ensure that a bulk of their team – from conceptualization to production – are Nigerians residing in Nigeria. It means, for example, that before a programme can qualify to be aired as local content, the producer(s), director(s), author/writer(s) must be Nigerians. Furthermore, 75 % of the leading actors and major supporting cast must be Nigerians.
The section also specifies that a minimum of 75% of program expenses and post-production expenses are paid for services provided by Nigerians and Nigerian companies.
It’s just natural that every country does its best to protect and create jobs. In a country with diverse talent, we have no business shipping productions of adverts, films and reality shows abroad. It’s imperative we reap the economic benefits of local production locally. The local content regulations should not be regarded in isolation, as it is but one of the components towards achieving the ideological, economic and moral objectives of the NBC Code.
This isn’t the first time the NBC has had to step in and restore order successfully. The previous structure witnessed certain time belts which would usually attract lots of advertising spend being flooded with foreign soaps and shows.
However, the NBC intervened by ensuring broadcasters reserve these time slots for local content. This effort by the NBC to revamp the industry was met with broadcasters trying to bypass the code by claiming they had one or two Nigerian producers on these shows, however revenue made was left abroad. The new code thus mandates the involvement of more Nigerians and requires that production is done locally thereby ensuring the economic benefit of production is reaped locally.

Advertising

Like Section 3(15) which covers the Character of Local Content, Section (7)(8) seeks to stimulate growth in the advertising spend which accrues to the Broadcast industry by deliberately utilizing Nigerian human resources, goods, works and services, and leveraging existing and future investments in the sector to stimulate growth of Nigerian and Nigeria’s local enterprise amongst others. Additionally, it aims to ensure that producers reap the benefits of advertising.
The present reality is that most of the productions on Television and Radio are paid for by sponsorships and adverts. However, the sad truth is that producers, some of whom had to take loans to produce content, are being short-changed and defrauded.
Now, the NBC is finally clamping down on advertisers and agencies who are reaping the benefit of advertising and are either not paying producers or even when they pay, it’s not timely as stated in section 7.9.1 of the amendment.

These massive strides signal the commission’s readiness to promote growth of local content, massive job creation, and more importantly, create a platform for Nigerian companies to contribute immensely to the growth and development of the Nigerian economy.

Music

The amendment to Section 3 (18) (3) is perhaps the biggest win for music publishers, composing associations and composers in a long while. Section 3 (18) (3) which covers music aims to ensure that Nigerian artists get adequate payment for the use of their copyrighted works on air.
It states that: “the broadcaster shall ensure that payment of royalties (…) prior to the use of an artistic work by way of publishing performance, production, reproduction, translation, distribution, adaptation, broadcast and /or making of a cinematograph film or a record (….)”
A deeper look into the amendments reveal that broadcasting organisations must obtain license from artists or owners before such music or artwork can be played on air. It further compels broadcasters to pay all sums payable to COSON and obtain clearance from owners of rights to an artwork or artists before it can be played on air.
Failure to comply with any of the guidelines will make a broadcaster liable to a Class B offence.

Conclusion

The amendments to the NBC Code are laudable. It is, however, sad that the controversy surrounding a few sections have clouded the objectives of the amendments.
For a nation which seeks the inclusion of more indigenous firms, it is indeed surprising that these amendments seem to be generating more hostility than admiration.
This begs the question ‘What exactly do Nigerians want?’
*Bryan Onoja, a lawyer, writes from Lagos

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