Licensing / Media Regulation
Valdelomar and Sibaja v. Costa Rican Superintendence of Telecommunications
Closed Expands Expression
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The Community Court of Justice of the Economic Community of West African States (ECOWAS) held that provisions of Nigeria’s Broadcasting Code violated the right to freedom of expression protected by the African Charter on Human and People’s Rights. An NGO had approached the Court, seeking a declaration that the Code’s provisions on offensive and hate speech prohibited speech that was protected, were vague and imposed sanctions that were excessive. The Court held that the provisions were a violation of the African Charter and ordered Nigeria to bring those provisions into alignment with their international obligations.
On September 4, 2020, Expression Now Human Rights Initiative (ENHRI) – a non-governmental organization that works to protect and promote human rights of Nigerian citizens especially of freedom of expression and media freedom – filed an application against Nigeria in the ECOWAS Community Court of Justice. ECOWAS is the Economic Community of West African States. ENHRI submitted that the Nigerian Broadcasting Commission (NBC), the country’s regulator for broadcasting activities, had been arbitrarily imposing sanctions and fines on broadcasting stations across Nigeria, and that various provisions of the Nigerian Broadcasting Code violated the right to freedom of expression.
Article 3.1.1. of the Code provides: “No broadcast shall encourage or incite to crime, lead to public disorder or hate, be repugnant to public feelings or contain offensive reference to any person or organization, alive or dead or generally be disrespectful to human dignity”.
Article 3.1.2 of the Code provides: “Broadcasting shall promote human dignity, therefore, hate speech is prohibited”. In the “Definition of Terms” contained in the Code, “Hate Speech” is defined to mean “speech which attacks a person or group on the basis of attributes such as disability, ethnicity, gender, political leaning, race or religion”.
Article 15.2.1 of the Code provides: “The sanctions for Class A are: (a) Immediate order of suspension of broadcast services; (b) Suspension of license and immediate shut down/seal up of transmitter; (c) Revocation of license, seizure and forfeiture of transmitting equipment”.
Article 126.96.36.199 provides: “In the case of suspension of a broadcast license, the appropriate recommencement fee as stipulated in 15.5.1 c shall apply”.
Article 15.5.1 of the Amendments to the Code provides that the sanctions for light infringements are between N200,000.00-N50,000.00; for heavy, between N500,0000-N4,999,000.00; and for severe, N5,000,000 and above. N200,000 is approximately US$250 and N5,000,000 is approximately US$6,300 in 2023.
ENHRI believed that the provisions contravened Article 9 of the African Charter on Human and People’s Rights (ACHPR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
The Federal State of Nigeria opposed the application.
On September 27, 2021, the Court held a virtual session where both parties were represented by counsel and heard the merits of the case and reserved judgment.
However, after no judgment had been delivered, on May 2, 2023, the matter came up before the Court and counsel were informed of the change of panel and the matter commenced de novo (from the beginning). The matter was adjourned to May 8, 2023 for hearing.
Hon. Justice Dupe Atoki presided over the three-judge panel of the Community Court of Justice of the Economic Community of the West African States (ECOWAS) including Hon. Justice Sengu Mohamed Koroma, judge rapporteur, and Hon. Justice Ricardo Cláudio Monteiro Gonçalves, member. The central issue for determination was whether there was a contravention of Article 9 of ACHPR and Article 19 of the ICCPR by the enactment and enforcement of the impugned provisions of the Code and its Amendments and whether that resulted in the violation of the right to freedom of expression.
ENHRI argued that the prohibition of “offensive speech” by the Code contravened the right to freedom of expression because offence is protected as part of freedom of expression. It also argued that the provision outlawing hate speech without defining or setting standards for what is “hate speech” is not permissible and that “hate speech” in the sense used in the Code is too vague, ambiguous and overbroad. ENHRI submitted that the penalties, including an immediate order of suspension of broadcast services, suspension and revocation of license, and the fines were excessive. ENHRI provided documentary evidence of examples of the sanction as a way to demonstrate the violation of the right.
Nigeria denied that there was a violation of right to freedom of expression and submitted that the NBC is empowered to regulate the broadcast industry in Nigeria through the use of the Code. It argued that the Code “seeks to promote local content, in the Nigerian broadcast industry, proscribes monopolistic and anti-competition practices, and provide for increased advertising revenue for local broadcast station and content producers”. [para. 20] Nigeria submitted that the NBC has the power to sanction any defaulting broadcast station or any other broadcast station which is in serious breach of or violates the National Broadcasting Commission Act or the Code by way of promoting unverified and inciting views that could encourage or incite to crime and occasion public disorder or hate. It maintained that the Code was not being used by to gag freedom of expression and the press and added that ENHRI had not proven its claim of a violation of freedom of expression through the use of the code.
The Court held that it had jurisdiction to hear the case and that the matter was admissible. It also emphasized that whilst it had no power to examine the legality of domestic laws of member states, it did have jurisdiction to examine claims on the conformity of domestic laws of member states to its international obligations.
The Court emphasized the importance of member states giving due consideration to alignment with international guarantees and obligations when enacting legislation, and referred to the African Commission of Human and Peoples’ Rights in Constitutional Rights Project v. Nigeria (15 November 1999) case which had stated that “[c]ompetent authorities should not enact provisions which limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international human rights standards.” [para. 49]
The Court considered the standard set in the Declaration of Principles of Freedom of Expression and Access to Information in Africa as the standard of compliance with Article 9 of the ACHPR. Principle 9 of the Declaration provides that: “1. States may only limit the exercise of the right to freedom of expression and access to information, if the limitation: (a) is prescribed by law; (b) serves a legitimate aim; and (c) is a necessary and proportionate means to achieve the stated aim in a democratic society”. The Court also referred to its judgment in The Registered Trustees of The Socio-Economic & Accountability Project (SERAP) v. Federal Republic of Nigeria which had noted that “it is not enough that it is established by law but that it also has a legitimate aim and is necessary and proportionate with ‘a direct and immediate connection to the expression and disclosure of information, and be the least restrictive means of achieving the stated aim’.” [para. 51] That judgment had held that “[i]t is no gainsaying that a law which fails to define its purpose or objective cannot pass the test of legality and therefore can be classified as ambiguous…where the application of the law is infinite in scope because of ambiguous clauses it renders it to Principle 9 of the Declaration and breaches the obligation in Article 9 (1) and (2) of the ACHPR.” [para. 51]
The Court held that Article 3 (1) (1) of the NBC Code was vague and the wording showed that the provision was infinite in scope and posed a threat to enjoyment of freedom of expression. It noted that the article allows for an “infinite class of acts” that may result in curtailed broadcast or curtailed freedom of expression. [para. 51] The Court stressed that Principle 9 of the Declaration was adopted to help member states avoid the kind of situation created with the enactment of this article, and that as the provision falls outside of the parameters established by the Declaration is is therefore an infringement of Article 9 of the ACHPR.
The Court held that Article 3(1)(2) was equally ambiguous and capable of curtailment of the right to freedom of expression
Accordingly, the Court held that the two provisions needed to be “properly aligned” to the Declaration with a defined scope of application in order to protect rights of the citizens. It added that as a result of those provisions’ ambiguity and vagueness, Articles 15(2)(1) of the Code and Article 15(5)(1) of the Amendment – sanctions imposed for violations of Articles 3(1)(1) and (2) – “cannot be seen to have been enacted in the spirit of the promotion or the protection of the right to freedom of expression, [as] the sanctions resulting will be arbitrary and the scope will be infinite.” [para. 52] The Court therefore held that all the impugned provisions did not comply with Principle 9 of the Declaration and therefore contravened Article 9 of the ACHPR.
However, the Court found that ENHRI had failed to demonstrate how the use of the impugned provisions violated the rights of its members, associates and collaborators. It cited the decision in Femi Falana V v. The Republic of Benin which had held that “the onus of proof is on the party who asserts and who will fail if the fact failed to attain the standard of proof that would persuade the court to believe the statement of claim”. [para. 54] Accordingly, the Court held that while the provisions did contravene Article 9, ENHRI had failed to demonstrate how they caused harm.
The Court ordered that Nigeria align the impugned provisions of the Code and Amendments with its international obligations, and instructed that the provisions could not be applied until that alignment had occurred. It ordered Nigeria to file a report on its compliance with the judgment within six months of the judgment, and awarded costs against the State.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Beyond finding that the Nigerian Broadcasting Code infringed the right to freedom of expression, the decision expands expression by ordering that Nigeria “align” the Code with its international obligations to protect the right and to provide the Court with an order of compliance.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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