Balancing free speech and content regulation in Nigeria

The right to express one’s views and to communicate with others is paramount to the development and exercise of personal autonomy and political agency. That includes the right to engage in robust and heated debate with others. Guaranteeing the freedom of expression is very important in any democracy. Nigerians in recent years have expressed this freedom both in protests and content creation particularly in creating satirical works that criticize government policies.

Monetizing content creation has further made it a booming venture, and with such boom comes regulation. The delicate balance between freedom of expression and content creation regulation is now being tested in the digital age. The National Film and Video Censors Board (NFVCB) tasked with regulating film and video contents, through a circular in June 2024, mandated all online content creators to submit skits, music videos, and other forms of digital expression to it for classification and approval before publication. This circular aimed to expand NFVCB’s reach to regulate online contents have been criticized by online content creators who labelled it as an overreach for reasons such as stifling their freedom of expression and the prohibitive costs for application and registration.

Current state of play

Under the Nigerian intellectual property regime, these different types of expressions are protected under copyright once these are expressed in fixed mediums. Fixed mediums are not exclusive to physical copies as the largest repertoire of such expressions in the digital age are now online. Today, the Nigerian Copyright Commission accepts electronic copies of works in registering copyright works as the amended Nigerian Copyrights Act recognize digital works. Due to the growing influence of social media, contents created are easily uploaded and distributed to different online channels such as YouTube, Facebook, TikTok, without NFVCB’s approval, where these contents are consumed and creators are paid.

The NFVCB Act (the Act) empowers it to license films and video works, including their distribution and ensuring adherence to prescribed standards. Traditionally, the NFVCB's regulatory purview has been administered in respect to physical copies of films and video works distributed through traditional channels like cinemas and television. The traditional channels have gone through different film epochs such as celluloids, video cassettes, compact discs, video compact discs digital versatile discs, before the digital era. A reading of the Act clearly shows that much emphasis is premised on physical works without emphasis on the digital or online contents because the Act has been in place before the current boom of content creators. Subsequent NFVCB regulations 2008 and 2022 does not particularly change this overriding impression about the provisions of the Act. Notwithstanding, the NFVCB can rightfully extend its reach to contents on online platforms given the definition of video work to include any series of visual image (with or without sound) showing as a moving picture.

Justifications for the pushback

A reason to challenge NFVCB’s expanding reach comes from the fear of government stifling freedom of expression. Some skit makers or online content creators criticize government policies and the fear that a government agency may not to license such works may be justifiable.

Furthermore, some levies in the regulations are deemed to be arbitrary. The levy for skits or online contents created under the 2022 regulations is about ten times more than musical videos. Meanwhile, musical videos require more resources to produce and guarantees better returns than skits. Also, while the Act created an exemption from registration for some video works, applicants must pay 50 percent of the applicable fees. Exemptions under the Act are not free.

Way forward

As at today, the rate of compliance is low and there is a need for NFVCB to fashion out avenues to increase compliance with the Act without stifling freedom of expression. This may include public education, collaboration and consensus building with industry stakeholders. There is no doubt the fact that the Act requires amendment which will allow its provisions reflect the realities of the digital era. Where the law is unable to envisage developments, it must be able to evolve in a manner that regulates and not stifle modern developments.

Policing the digital works is going to be a herculean task and it is better that NFVCB adopt a collaborative approach to achieve measurable outcomes.