By Obioma Okonkwo

I recall vividly the exact day that my desire to defend media freedom was born 12 years ago. I was on my way to a bank and listening to a local radio station when an announcement began, alerting listeners to a robbery in progress at the very bank I was heading to. The station warned listeners to stay away from the area as the ongoing gun battle between law enforcement and heavily armed robbers had already claimed many lives. 

Until I heard the announcement, I was totally unaware of the incident. The radio station probably saved my life—or at least saved me from serious harm and trauma. The incident helped me realize the important role the news media play in protecting human rights and enhancing societal wellbeing. It ignited in me a passion for advancing and defending media freedom and free expression. 

As head of the legal department at Media Rights Agenda (MRA), I explore how strategic litigation can be used to uphold press freedom in cases involving media regulation. It’s undeniable that the media must be regulated to preserve the public interest, maintain ethical standards, and ensure the dissemination of responsible content. The challenge is what to do when regulation goes too far, restricting freedom of expression instead of enabling and protecting it.  

To regulate the broadcast industry, the Nigerian government enacted the National Broadcasting Commission Act in 1992. The Act established the National Broadcasting Commission (NBC) and tasked it with overseeing the sector by regulating, licensing, and allocating frequencies to licensed stations. MRA uses legal and judicial mechanisms to challenge the policies and practices of the NBC and ensure its transparency and accountability.  

Over the years, the broadcast sector in Nigeria have faced many challenges stemming from restrictive regulations contained in the NBC’s Nigeria Broadcasting Code, raising concerns about the overreaching regulatory powers wielded by the commission.  

Navigating Regulatory Challenges

The NBC has faced numerous criticisms from CSOs, individuals, and the Broadcasting Organizations of Nigeria (BON) for its regulatory practices, including content control, sanctions, license suspensions, and social media oversight. There are several instances in which the NBC has suppressed or censored independent media under the guise of regulation. For instance, in 2005, the NBC temporarily shut down the operations of Daar Communications Limited for broadcasting details about a deadly plane crash.  

During the 2019 general elections, the NBC imposed fines on 45 radio and television stations for allegedly breaching the code. In 2020, it also imposed fines on three television stations for supposedly reporting about the #EndSARs protests—a series of mass protests against police brutality in Nigeria—in an unprofessional manner.  

Recently, the NBC received criticism for imposing fines on over 25 radio and television stations for alleged ethical infractions during the 2023 general elections. On March 31, 2023, the NBC announced it was fining Channels Television for airing an interview with vice presidential candidate Datti Ahmed, who expressed opposition to President Ahmed Bola Tinubu shortly after his election.  

As a result of such regulatory practices, experts are concerned that many media outlets may self-censor.  

Strategic Litigation: A Path to Media Freedom

Strategic litigation is a mechanism for bringing about change in society beyond individual court cases. It targets cases with the potential to set legal precedents, challenge unjust systems that infringe upon human rights, and influence policy. 

CSOs and individuals have been using strategic litigation to challenge the legality and constitutionality of fines imposed on the broadcast sector by the NBC with the aim of reshaping the media regulatory landscape, and ultimately, achieving a proper balance between regulation and media freedom. Numerous CSO, including MRA, Digital Rights Lawyers Initiative (DRLI) and Socio-Economic Rights and Accountability Project (SERAP), have repeatedly taken legal action against the NBC regarding fines imposed on stations for their coverage of a variety of issues.  

While not all cases against the NBC have been successful, strategic litigation has helped the efforts of those fighting for media freedom in Nigeria. A 2021 lawsuit filed by MRA against the NBC for the fines they issued in the 2019 general elections finally yielded a positive result on May 10, 2023. In its decision, a federal high court ruled in favor of MRA, declaring the fines unconstitutional. The court issued an order of perpetual injunction, restraining the commission from imposing further fines against the broadcast sector in Nigeria. 

This case demonstrates that strategic litigation, while time-consuming, is worth the effort as the decision has—for now—effectively curbed the NBC’s overreach.  

A Delicate Balance for a Free Media Landscape

The intricate relationship between media regulation and media freedom in Nigeria necessitates a delicate equilibrium. As the NBC carries out its regulatory duties, it needs to take media freedom and freedom of expression into account.  

For many reasons, strategic litigation is an effective tool for fighting regulatory overreach and creating social change. This kind of litigation allows a court of law to assess whether regulatory actions exceed the authority granted to regulators by law or violate constitutional rights. It also establishes a legal precedent that guides future regulatory decisions and deters regulatory agencies from overstepping their bounds. Successful strategic litigation can lead to remedies such as injunctions that prevent the enforcement of problematic regulation and award damages to those affected by regulatory overreach. 

Strategic litigation can also be used to garner public attention about the impact of regulation on freedom of expression and media freedom. Public outrage may put pressure on lawmakers, elected officials, and regulatory agencies to reconsider their actions or amend the regulations to address the concerns raised in the litigation.  

While strategic litigation is a powerful tool for challenging regulatory overreach, success often depends on various elements, including the impartiality of the judiciary. The international community can further strengthen these efforts in countries like Nigeria by investing in the following measures, which are meant to improve the capacities of local journalists, lawyers, and media experts to defend press freedom:  

• Support research by academia, civil society organizations (CSOs), and think thanks on media freedom issues, including the impact of strategic litigation. Such research can inform policies and advocacy efforts. 
• Collect data on strategic litigation undertaken by different stakeholders to challenge media freedom violations and share this information globally. This will highlight the extent of the problem, hold governments accountable, and enhance the efforts of CSOs on a global level.  
• Establish legal defense funds to support media freedom. These funds will help cover legal costs incurred by CSOs who monitor violations of media freedom and engage in strategic litigation. 
• Offer or support training programs and resources for lawyers, CSOs, and journalists on media law and strategic litigation techniques. 
• Use diplomatic channels to advocate for media freedom and demand support for countries with poor media freedom records. 

The implementation of these recommendations could create a media environment that implements effective regulation while upholding media freedom.  

Obioma Okonkwo is a 2022 Open Internet for Democracy leader. Obioma is a human rights lawyer and is passionate about creating an enabling and safer environment for digital rights, freedom of expression, media freedom and freedom of information. She is the head of the legal department at Media Rights Agenda (MRA), a leading non-governmental organization in Nigeria. In this role, Obioma has spearheaded litigation, advocacy campaigns, engagement meetings, research interventions, and capacity-building workshops for the protection and promotion of digital rights, freedom of expression, media freedom, and freedom of information in Nigeria and globally.