By Prince Osuagwu, Hitech Editor

The Minister of Communications and Digital Economy, Dr Isa Ali Ibrahim Pantami, last week directed the Nigerian Communications Commission, NCC to review downwards, the price of data within five days.

Pantami issued the directive during the presentation of the new board member and Executive Commissioner, Mr Adeleke Adewolu. Adewolu replaced Mr Sunday Dare who left the board to become the sports minister. After the presentation, the minister pointed to numerous complaints from Nigerians regarding illegal data deduction and high price of data, adding that he had personally experienced illegal data deduction.

Apparently irked by that frustration, the minister fired a directive: “I am urging the management of NCC to work towards reducing the price of data in Nigeria. It is too costly and people are complaining every day. If you go to other countries, even countries that are not as largely populated as Nigeria, data prices are not this high. I am also a victim of some of the infractions that are so common in the industry. You load your data but you barely use 20 per cent of it and the entire data is wiped off.

“Please go, sit down and review that issue. It is very important and I want to get your feedback with that report in the next five working days with the decision on it because the complaint from Nigerians is beyond what I can handle as it is today, people are complaining,” This is not the first time Pantami had issued such emotional directives.

When MTN Nigeria recently issued a notice to  subscribers of its intention to commence charges on Unstructured Supplementary Service Data,USSD, on mobile transfers, the minister also  directed the NCC to ask MTN to suspend the decision, because he was not earlier informed. Ordinarily, these are the kinds of intervention governments should make to deliver dividends of democracy to its citizens.

On that basis, the tendency to applaud Pantami’s calls could be high. However, interventions made outside the law or in total disregard of constitutional provisions and set rules, have very grave implications. Some,can erode  progress.

The telecom industry has been one of the strongest pillars of the Nigeria’s economic growth since about two decades the sector was liberalised. It has attracted Foreign Direct Investment, FDI investment of well over $70 billion and contributed more than 10.11 percent to the country’s Gross Domestic Product, GDP in 2019, surpassing oil, the mainstay of the economy.

These achievements were made possible by adhering to standard principles and international best practices. It is apparently why Pantami’s recent calls appear to have irked Information and Communications Technology, ICT professionals. They are described as not only arbitrary but also capable of negating the standard principles upon which the sector has blossomed so far.

The NCC is guided by the Nigerian Communications Act 2003, and Section 108 of the Act forbids the commission to prescribe retail prices by fiat. It only allows it to ensure that tariffs reflect costs of providing services. It means that the NCC is mandated to carry out cost-based studies from time to time and as may be deemed fit to fix price floors and /or ceilings. That way, no operator can under-price to kill competition.

Section 108 of the Act, sub section(1) says: “ Holders of individual licences shall not impose any tariff or charges for the provision of any service until the Commission has approved such tariff rates and charges except as otherwise provided in this Part.

(2) The licensees specified in subsection (1) of this section shall provide services at the tariff rates and charges so approved by the Commission and shall not depart therefrom without prior written approval by the Commission of such proposed changes in tariff rates and charges.

(3) All licensees mentioned in subsection (1) of this section shall publish the tariff rates charged to customers for their respective services and the modifications thereto as may be approved from time to time by the Commission.

(4) The tariff rates established by a licensee mentioned in subsection (1) of this section shall be on the basis of such principles as the Commission may from time to time stipulate in its guidelines or regulation including the following—

(a) tariff rates shall be fair and, for similarly situated persons not discriminatory ;

(b) tariff rates shall be cost-oriented and, in general, cross-subsidies shall be eliminated ;

(c) tariff rates shall not contain discounts that unreasonably prejudice the competitive opportunities of other providers ;

(d) tariff rates shall be structured and levels set to attract investments into the communications industry ; and

(e) tariff rates shall take account of the regulations and recommendations of the international organisations of which Nigeria is a member.”

Meanwhile, a survey recently released by Cable.co.uk indicated that 10 of the top 50 cheapest countries in the world for mobile data were in Sub-Saharan Africa.

Also, seven North African countries included in the report appeared higher up in the table than majority of countries in Sub-Saharan Africa. The report included data from 6,313 mobile data plans in 230 countries around the world between October 23 and November 28, 2018.

It however shows Nigeria is not the worst hit, contrary to the allegation of the minister. In Africa, countries in the south pay the most for 1GB of data. South Africa pays $7.19,  Namibia, $11.2  and Botswana, $14.12. The survey says that in West Africa, Nigeria’s 1GB of data is obtained at $3.22, while in Chad it is $23. 3.

In Cameroon, it goes for $1.71. It goes for  $4.1 in Ivory Cost and $2.92 in Niger. In the North African region, Algeria’s 1GB goes for $5.15; Egypt’s IGB goes for $1.49, Libya’s $4.87and in Sudan it cost $0.6.

The survey said India had the world’s cheapest data plan at $0.10 for 1GB, adding that in the US, it goes for $12.37 and $6.66 in UK. The global average of 1GB data plan is $8.53.

Zimbabwe pays the highest price in the world at $75.20 per 1GB, followed closely by Equatorial Guinea at $65.83, Saint Helena at $55.47 and Djibouti at $37.92.

Interestingly, the Executive Vice Chairman of the NCC, Prof Umar Danbatta, at an event in Lagos recently, revealed that even before the minister’s call, the commission had consulted the KPMG to carry out cost based study to determine if the price of data consumers currently enjoy will be increased or reduced in line with the reality of the markets.

Industry experts believe that if this is already ongoing, the five day ultimatum by the minister will only spell doom because the outcome will not be supported by scientific data. They warned the commission to be careful how it panders to the whims of the ministry before it loses its independence status.

Chairman of the Association of Licensed Operators in Nigeria, ALTON, umbrella body of the telcos, Engr Gbenga Adebayo has expressed shock at the call, describing it as unrealisable.

Adebayo said that the call amounts to forcing the commission to destroy the gains it made over the years that has made the sector a beautiful bride constantly toasted by global investors.

According to him, such arbitrary price reduction calls are unfair to operators who suffer consistent cases of vandalism, multiple taxation and regulations, indiscriminate shutdown of their base stations, high cost of RoW, among other things hindering service delivery. A telecom lawyer, Mr Chukwu Umeoha, berated Pantami’s call, saying it was borne of little knowledge of the oversight functions of a minister to an independent agency.

He advised ministers to arm themselves with the Public Service rules to avoid abuse of their oversight functions.

Hi-Tech’s check, actually reveals that Pantami’s calls appear to run fowl of the federal government’s gazetted Public Service Rules. Chapter 16 of the rule, section 1, describes a  Parastatal as  “a government-owned organization established by statute to render specified services(s) to the public. It is structured and operates according to the instrument establishing it and also comes under the policy directives of Government.

Section 2 (a) says “Statutory Boards/ Councils shall set operational and administrative policies in accordance with government policy directives and supervises the implementation of such policies. The administrative policies may include those relating to appointment, promotion and discipline of staff.

(b) A Board shall not be involved directly in the day-to-day management of a Parastatal.

(c) A Minister exercises control of Parastatals at policy level through the Board of the Parastatal only.

This means that even the monthly briefing which the NCC has subjected itself to, at the ministry is a distraction that will not benefit the industry.

Vanguard

By Ronan Ó Fathaigh

On 25 July 2019, the European Court of Human Rights delivered an important judgment in Brzeziński v. Poland, concerning a provision in Poland’s election law which allows a court, within 24 hours, to consider whether ‘untrue information’ has been published, and to issue an order prohibiting its further distribution. The European Court in Brzeziński unanimously held that a fine issued under the provision violated the right to freedom of expression, under Article 10 of the European Convention on Human Rights.

The case arose in the run-up to local elections in Poland in 2006, and involved Zenon Brzeziński, a candidate in local government elections in southern Poland. During the campaign, Brzeziński produced an election booklet which criticised members of the outgoing local government. The booklet discussed poor local water and sewage systems, and criticised the mayor (‘J.Ś.’) for implementing unfavourable contracts with a water company, stating that ‘despite having announced in public that he had rescinded those contracts’, the mayor had done so in an ‘amateurish way, delaying their termination by years’. The booklet also criticised another local councillor (‘J.K.’) for having received ‘municipal subsidies for a company she managed’. On a Sunday morning before the elections, Brzeziński distributed a ‘large number’ of the booklets to churchgoers leaving a local Sunday mass.

Following the booklet’s distribution, the mayor and councillor brought an action against Brzeziński under Section 72 of the Local Elections Act. The provision allows candidates to apply to a Regional Court for an order restraining publication of campaign material or statements containing ‘untrue data or information’, with the court required to examine the application ‘within 24 hours’. The mayor and councillor sought a court order under Section 72, requiring Brzeziński to correct ‘untrue information’ in the campaign booklet, and prohibit further distribution of the booklet.

On the morning of 27 October 2006, Brzeziński was summoned by telephone to attend a court hearing scheduled for 13.30 the same day, at Częstochowa Regional Court. Brzeziński was unable to attend, but the Regional Court delivered its decision a few hours later, finding the booklet had been ‘untrue’, ‘malicious’, and ‘exceeded the permissible forms of electoral propaganda’. The Court held that accusing the mayor of ‘unprofessionalism’ in the contract termination was ‘unfounded’; and in relation to the councillor, there was no ‘conflict of interest’ over receiving municipal subsidies and being on the receiving company’s board. The Court issued an order prohibiting Brzeziński from distributing the booklet further; and ordered him to publish an apology in two local newspapers, which read that he ‘regrets that the above-mentioned untrue information was made public, since it could have misled public opinion’. The Court also ordered Brzeziński to pay a sum to charity, and costs. The Regional Court’s judgment and orders were ultimately upheld by the Katowice Court of Appeal.

Brzeziński made an application to the European Court in 2007, claiming a violation of his right to freedom of expression, but it took over 12 years for the case to make its way to a judgment. Ultimately, though, the European Court unanimously held that there had been a violation of Article 10. The Court considered that the election law provision was ‘prescribed by law’, pursued the legitimate aim of the ‘protection of the reputation or rights of others’, and the main question for the Court was whether the interference with Brzeziński’s freedom of expression had been ‘necessary in a democratic society’.

First, the Court noted that the campaign booklet was published during a local election campaign, targeting local government and elected officials, and concerning a matter of ‘undoubted’ public interest: local government management. The Court reiterated that under Article 10, there was ‘little room’ for restrictions on such public interest expression, the elected officials targeted were subject to ‘wider’ limits of acceptable criticism, and that as Brzeziński was speaking as an election candidate, the government’s margin of appreciation for restricting such expression was ‘very limited’.

The Court then reviewed the Polish courts’ decisions, and in particularly scathing language,   noted that Brzeziński’s statements had been ‘immediately classified as lies’ by the Polish courts, and ‘[i]t did not appear from the reasoning of the domestic courts that they had examined whether the impugned remarks had a sufficient factual basis’. The Court considered that Brzeziński was ‘clearly involved in a public debate on an important issue’, and the Court was ‘unable to accept the domestic courts’ view that [Brzeziński] was required to prove the veracity of his allegations’, and ‘[b]y following such an approach the domestic courts effectively deprived [Brzeziński] of the protection afforded by Article 10’. Crucially, the Court held that the language used in the booklet was not ‘vulgar or insulting’, and was within the limits of ‘exaggeration and provocation’ and the ‘ordinary tone’ of ‘political debate at local level’. Based on the forgoing, the Court held that the reasons given by the Polish courts for the judgments against Brzeziński ‘did not correspond to any pressing need’.

The Court also examined the sanctions imposed, noting that not only was an order issued  prohibiting dissemination of the booklet, Brzeziński was also obliged to apologise and rectify the ‘inaccurate information’ by publishing a statement on the front page of two local newspapers, in addition to being ordered to pay costs and a sum to charity. The Court held that the ‘cumulative application’ of these sanctions ‘would likely have a chilling effect on individuals engaged in local political debate’. The Court unanimously concluded that there had been a disproportionate interference with Brzeziński’s free expression, in violation of Article 10.

Comment

Given the total absence of Article 10 political expression principles having been applied by the domestic courts in the Section 72 proceedings against Brzeziński, it is not surprising that the Brzeziński judgment was delivered by a three-judge Committee of the European Court. This was an application of the simplified procedure under Article 28 of the European Convention, where a Committee may, by a unanimous vote, declare an application admissible and ‘render at the same time a judgment on the merits’, if the underlying question is ‘already the subject of well-established case-law of the Court’.

There was indeed ‘well-established case-law’, with the Court having twice before found similar proceedings under Section 72 targeting election-time expression as violating Article 10. The first was the unanimous judgment in Kwiecień v. Poland, where the Court found serious deficiencies under Section 72 ‘untrue information’ proceedings, including that the domestic courts (a) did ‘not carry out the relevant balancing exercise’, (b) did not give ‘any consideration’ to a number of Article 10 political expression principles, and (c) had not ‘sufficiently examined the evidence adduced’. The Court even held that the ‘fairness of the proceedings may be called into question’. Similarly, in Kita v. Poland, the Court unanimously found a violation of Article 10 over Section 72 proceedings, holding that the Polish courts ‘unreservedly qualified all of [the statements] as statements which lacked any factual basis’, and the ‘standards applied’ by the Polish courts were ‘not compatible with the principles embodied in Article 10’. The unanimous judgments in Kwiecień and Kita were both joined by the former President of the Court, Judge Nicolas Bratza. Coupled with Brzeziński, it is fair to say that there is a serious Article 10 problem with Section 72 proceedings targeting supposedly ‘untrue information’ during election time.

However, the Brzeziński judgment was curious in one respect, and that was the Court’s dismissal of Brzeziński’s procedural claim under Article 10 that because he was summoned ‘three hours’ before the beginning of the Section 72 hearing, this prevented him from attending and properly ‘defend[ing] himself’. The Court rejected this submission, and relying upon a domestic court finding that Brzeziński had communicated ‘no obstacle to his personal appearance in court’ when he was summoned by telephone, the European Court held that the ‘impossibility’ of presenting his case could not be ‘attributable to the national authorities alone’. Further, the Court also rejected Brzeziński’s claim under Article 6 of the European Convention (right to a fair trial), that the Section 72 proceedings were ‘unfair’, with the Court simply stating that it was ‘not necessary to consider whether, in the present case, there has been a violation’ of Article 6, given the finding of a violation of Article 10.

The Court thus demonstrated a marked reluctance to tackle the nub of the issue: the obvious problems that flow from a provision like Section 72, which requires a court to deliver a judgment within 24 hours, on whether ‘untrue information’ has been published. It must be pointed out that in Kwiecień, the Court specifically noted that provisions like this serve the ‘legitimate goal of ensuring the fairness of the electoral process and as such can not be questioned from the Convention standpoint’. However, the Court added an important proviso: it should not ‘result in the undue curtailment of the procedural guarantees afforded to the parties to such proceedings, in particular the defendants’. Curiously, the Court in Brzeziński did not apply this principle when addressing Brzeziński’s claim that a three-hour notice period rendered the proceedings unfair, and simply stating that his non-appearance was not ‘attributable to the national authorities’, does not address the central question: is a three-hour notice period to prepare a defence to civil court proceedings over ‘untrue information’ an undue curtailment of procedural guarantees of fairness?

Finally, Brzeziński is the first judgment from the European Court where the judges use the term ‘fake news’. Neither the Polish government, nor Brzeziński, used the term in their submissions, with the Court introducing the term of its own volition, stating: the summary nature of the procedure in question is ‘justified by the need to ensure that “fake news” and remarks that undermine the reputation of election candidates and which are likely to distort the result of the vote are rectified as quickly as possible’. Of course, no authority was cited for this principle. The use of the term ‘fake news’ was incredibly disappointing, given that independent reports from both the Council of Europe (here) and the European Union (here) have found that the term should not be used, as it is ‘woefully inadequate’, ‘misleading’, ‘appropriated by politicians around the world to describe news organisations whose coverage they find disagreeable’, and a ‘mechanism by which the powerful can clamp down upon, restrict, undermine and circumvent the free press’. Hopefully Brzeziński is the last time a European Court judge uses such a term in a Court judgment or decision.

Culled from: STRASBOURG OBSERVERS