AN EXAMINATION OF EMERGING LEGAL CHALLENGES IN NIGERIAN TELECOMMUNICATIONS LAW
This dissertation seeks to examine the legal framework for the regulation of telecommunications in Nigeria and highlight the various emerging issues and legal challenge therefrom. With the liberalization of the telecommunications sector and the emergence of the Global System for Mobile Communications (GSM) in commercial quantity, the Nigerian telecommunications tempo has changed drastically, with licenses granted to private operators, thus breaking the monopolistic status of the Nigerian Telecommunications Plc (NITEL). A lot of benefits have been recorded over the years in the industry – investment has increased, job opportunities have been created and there has been a general economic growth and consumer benefit. New services have emerged and convergence in services has been a matter of convenience. Despite the huge achievements of telecommunications in the country, however, the sector has been faced with a lot of challenges such as multiple regulation, government interference in telecommunications matters, multiple, high and illegal taxation, cybercrime and security of infrastructure.Other emerging challenges include the challenges of cybersecurity, data protection of cyberusers, lack of a viable competition law, security of telecoms infrastructure, and the thorny issue of interconnectivity and access to network facilities. The sources, scope of application and historical development of Telecommunications Law were examined in chapter two of the research. Then the regulatory framework for the regulation of telecommunications (both local and international) was highlighted. Thereafter the emerging challenges were examined with an indepth analysis leading to far reaching findings and recommendations.
1.1 BACKGROUND TO THE STUDY
In the present twenty-first century, economic growth and development have been inextricably linked to information technology as economies have transformed and driven new value from the Industrial Age to the Information or digital Age. Latest statistics which shows that in the last ten years, the country has seen a dramatic growth from 400,000 lines to 226 million lines out of which about 150 million are active.1The significance of telecommunication infrastructure was stated by the National Policy on ICT to be a driving tool for socio-economic development2. The policy acknowledged the role played by telecom infrastructure in so many aspects of the economy, such as business (e-commerce), law (e-filing), banking (mobile and e-banking) etc. Other positive indicators of ICT progress in Nigeria include the growth in e-banking and e-commerce where new business models are being implemented by companies like Konga, Jumia, Paga, Wakanow, Jobberman – all creating new jobs and stimulating the local economy.
Despite this phenomenal growth however, there has not been a corresponding growth in regulation which has occasioned a legal vacuum that currently constitutes a monumental challenge to operators and stakeholders alike.
Nigerian telecommunications regulations are inadequate to engender an efficient and effective regulation of telecommunications business and electronic commerce; the Nigerian telecommunications environment is faced with fundamental institutional, operational and regulatory challenges; there are issues of multiple regulation and incessant government intervention in telecom‟s operation raising so much ambiguity and confusion in the sector. Federal, State and Local Government MDAs are jostling issuing levies and notices to telecom operators each claiming legitimate backing fromvarious enabling laws. These MDAs (from the 3 tiers of government) see an opportunity to generate revenue from the operations of telecoms operators through the imposition of Multiple, illegitimate levies and taxes. The failure of the industry to submit to these illegitimate regime and demands often results in disruptive enforcement actions by these MDAs. Network operators continue to witness harassment, forcibly sealing of telecoms sites or removing components of site installations in their bid to compel compliance. These continued interventions in telecoms operations by MDAs results in a disruptive of services, degradation of service quality, a major increase in operating expenses and the general cost of carrying on communications business in Nigeria.
In the area of Cybercrime and Personal Data Protection and Privacy of Subscribers, even though much is being done in this regard, there is need for the strengthening of the current legal mechanisms (especially the Cybercrime Crime (Prohibition and Prevention Ect.) Act of 2015in order to remove ambiguities and further consolidate government‟s effort towards an efficient and effective tackling of Cybercrime.
In August, 2009, the Nigerian telecommunications regulator, the Nigerian Communications Commission (NCC), in exercise of its regulatory powers under the Nigerian Communications Act (NCA) 2003, issued a directive which was published in the “Thisday Newspaper of December 31, 2009” to the effect that as from 1st March, 2010 all new “Subscriber Identity Module” (SIM) cards must be registered before activation3.
This was followed by a subsequent directive for registration of the SIM cards by existing SIM card holders at a later date, failing which such SIM cards would be deactivated and refused data transmission in Nigeria. According to the NCC, the directives were borne out of the need to have a credible database of SIM card holders in Nigeria which will be used to identify (for possible prosecution) criminal actors who perpetrate criminal activities through the use of mobile phones by exploiting the anonymity of an unregistered SIM Card.
Nigerians, in their millions, embarked on the registration of their SIM cards for fear of having their SIM Cards de-activated by their respective telecommunication service providers without realizing the lurking danger of identity theft, unlawful use and disposal of their personal data and breach of their right to privacy.
Even though the current Cybercrime Act contains provisions relating to the protection of personal data of cyber users, it is the considered view of this writer that such provisions are insufficient as they are laced with so much ambiguities and incongruences thereby making the issue of protection of personal data of cyber users still very much of a challenge.
This research will examine the current legal regime governing telecommunications activities and highlight the lacunas in these legal regimes with a view to proposing new legal directions.
AN EXAMINATION OF EMERGING LEGAL CHALLENGES IN NIGERIAN TELECOMMUNICATIONS LAW
1.2 STATEMENT OF THE PROBLEM
In spite of the phenomenal growth experienced in Nigerians telecommunications sector, there has not been a corresponding response from regulatory bodies to develop a more comprehensive legal regime to tackle the various challenges thrown up by the growth in the telecoms industry. These challenges are numerous and will be beyond the scope of this research. The research therefore focuses on four (04) major areas that need urgent legal and operational intervention.
These problems and challenges include:
- Multiple Regulation of Telecoms operators,
- Challenges of Cybercrime and lack of a wholistic Data Protection Law to protect the data of Consumers,
- The Challenges of Interconnectivity, Access to Network Facilities and Protection of Telecoms Infrastructure and
- The near absence of a Comprehensive Competition Law.
The telecoms industry has witnessed untoward intervention and actions from various Ministries, Departments and Agencies (MDAs) of Governments (at the 3 tiers) who see an opportunity to generate revenue from the operations of telecoms operators through the imposition of Multiple, illegitimate levies and taxes. This has led to inter-agency clashes in some cases as to the sphere and scope of influence each agency has over telecoms operators.
The Nigerian Communications Act4 provides for certain rights and obligations of consumers in telecommunications industry, and pursuant to the powers conferred upon it, the Nigerian Communications Commission (NCC) made the Consumer Code of Practice Regulations 2007.5 In spite of the above, there is still a plethora of challenges of awareness amongst subscribers about the existence of these rights and the effectiveness of enforceability.
In Nigeria, there is no direct and specific competition law, yet business combinations are a feature of the economy. Although the law allows merger and business combination, the absence of a competition law clouds the horizon and makes the consumer open to monopolies that will hurt rather than help the economy.6
The rise in Internet based transactions over the last few years has resulted in a vast increase inthe amount of personal and financial information being transmitted7. This, therefore, necessitates a framework for Right to Privacy and Data Protection. Without a wholistic Data Protection Law, the current consumer data been collected and stored by telecommunications companies might be opened up to abuse.
Communications facilities and services of different licensees of telecommunications must be made available to each other for effective and meaningful interconnectivity and supply of telecommunications services. Access in telecommunications services forms an indispensable discourse in telecommunications. Provisions of access enable a telecommunications licensee to have access to another licensee‟s communications facilities and services for the purpose of providing telecommunications services. Such facilities and services include the connection of equipment, access to physical infrastructure such as buildings, ducts and masts. Access is controlled by the Nigerian Communications Act, and subject to any exception as may be determined by the NCC and duly published, network facilities providers and network service providers are bound to provide access to their network facilities or network services listed in the access list8to any other network facilities provider, network service provider, applications services provider or content applications service provider, who makes a written request for access to such network facilities provider or network service provider on reasonable terms and conditions.9Disputes among telecommunications operators in respect of interconnection usually arise, and when any such dispute arises an attempt is first made to resolve the dispute between the disputing parties through negotiations or other alternative dispute resolution mechanism.10
Where no agreement is reached within the specified period, either party may appeal to the commission and the commission shall decide on the case, taking into consideration the interest of both parties. In the absence of specific legal framework for resolving the challenges posed by Access and Interconnections, the challenges occasioned by such absence have continued to affect the smooth resolution of disputes amongst contending operators.
The area of Competition law in Nigeria remains an area of law that has not been fully tapped. Currently, there is no competition law operating in Nigeria and although there has been a bill, it is yet to be passed to law. The ongoing lack of a competition law regime has quite predictably led to price-fixing, excessive pricing of products , market concentration as well as domination being the order of the day, all to the detriment of the consumer.
1.3 AIM AND OBJECTIVES OF THE STUDY
The main aim of this research is to examine the challenges in the Nigerian telecommunications regulating arising from the lacunas created by the existing legal regime with a view to finding New Legal directions to tackle these challenges. The objectives of the research are:
- To highlight the danger of multiples regulation of telecoms operators and propose the streamlining of regulations regarding telecommunications in Nigeria;
- To highlight the need for a review of the Cybercrime Act and propose for a wholistic Data Protection Law in Nigeria to protect personal data of telecom users;
- To propose a much more efficient and effect usage of telecoms infrastructure through Infrastructure collocation and sharing;
- To examine existing legal provisions regarding Competition and propose a single and more Comprehensive Competition Law for the Telecoms Sector.
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1.4 SCOPE OF THE RESEARCH
This Study will be limited to Laws regulating Telecommunications in Nigeria. These Laws will be examined and the various areas uncovered by these Laws will be highlighted. In terms of scope of challenges addressed, these challenges have been limited to those areas that have not seen much research amongst telecom researchers and they have mainly been limited to four (04) in number.
In terms of geographical applicability, Nigeria will be the main area of focus while cursory references will sometimes be made to other jurisdictions such as the United Kingdom, the United States, South Africa and Europe for the purposes of comparative analysis.
1.5 RESEARCH METHODOLOGY
The doctrinal research method will be adopted in this research as it will be necessary to analytically consider statutory provisions(primary sources) as well as scholarly opinions in books, journals, articlesand internet resource relating to the subject (secondary sources).
AN EXAMINATION OF EMERGING LEGAL CHALLENGES IN NIGERIAN TELECOMMUNICATIONS LAW
1.6 LITERATURE REVIEW
Scholars and academics (both local and foreign) have published several works in the field of telecommunications and electronic commerce.These works, though extensive in addressing the aspects of telecommunications law and its challenges, they fall short in tacking several emerging challenges which are either peculiar to Nigeria or recent in nature.
The works of John Angel and Ian Walden11 and Colin D. Long12 are standard materials on telecommunications law and policy. These works examine the legal framework for telecommunications and electronic commerce in details. Their limitations however is that their scope was limited to the United States and Europe. The applications of such legal and policy frameworks as they relate to Nigeria were not covered.
Clive Gringras13 extensively dealt with various aspects of laws as they affect internet or electronic commerce and internet transactions including cybercrimes, data protection, taxation and competition law.
Rodney D. yder14 dealt extensively with the concept and legal determination of cyber space and the law. He examined Information Technology Laws of India and Indian Rules, Regulations and Guidelines on cyber laws and policies, including electronic commerce.
These works like those above were also limited to foreign jurisdictions and did not cover the challenges relating to Nigeria.While their works are standard works, the fact remains that they are all foreign authors and their approach and considerations are based on their respective jurisdictions and this is what will distinguish this research work from their works. None of them considered the applicability of the regulations of telecommunications and electronic commerce to Nigerian situation.
In Nigeria, Ariyoosu D.A.15, examined extensively the legal regulations and Taxation of Telecomunications in Nigeria. While the scope of his research was much more extensive, its contents predominantly dwelt on areas that were not necessarily legal in nature.
Ladan M.T.16, extensively examine the connectivity between ICT, development and the Law. It further analyzed the sources of Law in Nigeria. Chapter two of this work relied on the purview presented by the learned Professor considering that telecommunications law fundamentally derives its efficacy from the same sources.
Adejoke O. O.17 examines the impacts and challenges of information and communication technology in diverse aspects of commerce, banking and business activities in Nigeria. Against the background of international standards, the paper discusses emerging legal responses aimed at safeguarding the data of online users and telecoms subscribers, the security and integrity of online transactions, and promoting certainty in the outcomes of dealings carried out through the medium. The paper concludes that while ongoing legislative interventions are desirable, the highly fragmented nature of emerging ICT laws and multi-layer regulatory institutions will unnecessarily complicate the legal and institutional landscape, and defeat the purpose of certainty and simplicity. It is observed that although the author discussed the challenges of data protection of cyber users, a comprehensive proposal was not presented on how to tackle those challenges.
Ladan, M.T18, in another of his book published in 2015 and titled “Cyberlaw and Policy on Information and Communications Technology in Nigeria and ECOWAS” gives highlights of Cyberlaw in West Africa. Decisions of the United Nations and other world regional bodies on cybercrime are discussed extensively. It is noted that while the work is seminal and extensive, it does not tackle some of the emerging challenges this research intends to cover.
Usoro19 gave a synoptic guide and legal issues in the implementation of e-commerce in Nigeria and legal and operational framework for Nigeria telecommunications. He further gave a Global reforms in telecoms industry pointing towards new legal directions. He however did not address the peculiar challenges being faced by the Nigerian telecoms Industry.
Okonji‟s20 work analyzed the challenges being faced by the Nigeria telecommunications sector, despite the overwhelming achievements telecommunications have recorded within the very shortest period of the commercial roll-out of Global System for Mobile Communication (GSM) in telecommunications industry. He however did not provide exhaustive legal reforms and recommendations to tackle these challenges.
Ndukwe, E., also examined some of the challenges for Telecommunications in Nigeria. However his work was more focused on other challenges such as cybercrime and consumer protection.21
Adegbemile22 provided a chronological development in Nigerian telecommunications and tapped experiences outside the Nigeria jurisdiction.
Nwokoro23 worked on regulatory framework and general governing principles for interconnection and interconnectivity agreements in Telecommunications Law.
Agbede I.O. wrote extensively on Competition Law even though only a cursory analysis was made on it relates to telecommunications Law.24
Dimgba N. also wrote on the need and Challenges of competition Law in Nigeria.25
In his work, he suggested that having competition legislation will deter corruption, because where government bodies have tremendous power to affect the competitive process when they issue licenses, permits, franchises and subsidies, when a competition law is adopted, some of these powers will be reduced and as such the responsiveness of government official to bribes in order to facilitate illicit economic gains will be reduced. This research however goes further than such advantages to examine structure of a proposed Competition law and how it can be harnessed to effectively address the lacuna created by the lack of a viable Competition Law in the telecoms sector.
Aluko M26, examined the ways of resolving Interconnectivity Battle in Nigeria and made useful suggestions which has been beneficial to this research.
Ani, L., a Research Fellow, Nigerian Institute of Advanced Legal Studies in her article titled “Cyber Crime and National Security: the Role of the Penal and Procedural Law”27 argues that law enforcement officials cannot effectively pursue cybercriminals unless they have the legal tools necessary to do so. The author also carries out a comparative analysis and critical review of Jurisdictions such as the USA, UK, India and Nigeria, if the existing Laws are adequate to combat cybercrime and consequently, if amendments need to be put in place. The Author states that lack of cybercrime specific laws and inadequate equipment of law enforcement agencies militate against the fight against cybercrime. In considering relevant laws in fighting cybercrime in Nigeria, the author does not consider the current Cyber Crime Act, 2015 which is Nigeria‟s effort to key into the international fight against cybercrime.
PricewaterhouseCoopers LLP in the article titled “Cybercrime: protecting against the growing threat”28 study the impact of cybercrime on organizations, their awareness of the crime and what they are doing to combat the risks. It also studies fraud, the fraudsters and the defrauded-the types of economic crimes committed, how they are detected, who is committing them and what the repercussions are. The writer observes that though this article gives a great insight on the effect of cybercrime on businesses its scope limited to the United Kingdom.
Bamodu G, in this article “ Information and Communications Technology and E-Commerce: Challenges and Opportunities for the Nigerian legal System and Judiciary”,29 examined the various challenges posed by current trends in ICT in Nigeria and gave a synoptic analysis of several of these challenges especially those related to e-commerce and cybersecurity. The author‟s article did not however cover recent interventions by government in terms of tackling the menace of cybersecurity.
1.7 JUSTIFICATION FOR THE RESEARCH
Telecommunication law is still a fledging area of Law upon which much has not been written. Students who are interested in pursuing Telecommunications Law especially in our new Digital Age will find this research useful in terms of acquainting themselves with the evolutionary curve Telecommunications Law has taken over the years and the new frontiers to be explored in order to have a more comprehensive legal regime for Telecommunication.
It is our firm belief that this research work will be beneficial to the following categories of persons:
- Members of the Judiciary who will become informed and equipped to deal with emerging issues of Telecommunications law;
- Legal practitioners, Academic writers and students who will become better equipped and informed to advise and represent clients, learn and carry out more research over issues of telecoms law and practice;
- Members of the organized private sector, telecom operators and stakeholders, local and international business men and women who will become better informed as to their duties and responsibilities and how to handle issues involving telecommunications especially as it relates to the challenges tackled herein;
- Members of the general public who will become better acquainted with international laws regarding the use of computer, the internet and general telecommunications;
- Encourage international cooperation in issues such as cybercrime and the protection of personal data of cyber users.
1.8 ORGANISATIONAL STRUCTURE
In the presentation of this study, an integrative buildup was adopted that captures all aspects of the research topic.
Chapter one provides a general introduction to the subject, research methodology, literature review, structure, objective, scope and significance of the Research.
Chapter Two examines a conceptual clarification of key terms, scope, sources and historical development of telecommunications law and policy in Nigeria.
Chapter Three examines the institutional mechanisms for the regulation of telecommunications in Nigeria. The various legal regimes for regulating telecommunications in Nigeria will be examined. References will also be made to international unions and conventions on telecommunications in this chapter with a view to drawing a comparative analysis between them and that of Nigeria.
Chapter Four looks at emerging issues, challenges and prospects of telecommunications industry in Nigeria and how the present legal regime is inadequately in tackling these emerging challenges. Four crucial challenges are dealt with viz: Multiple Regulation of Telecoms operators, Challenge of Cybercrime and lack of a wholistic Data Protection Law to protect the data of Consumers, The Challenge of Interconnectivity, Access to Network Facilities and Protection of Telecoms Infrastructure and the near absence of a Comprehensive Competition Law.
Chapter Five shall be Summary, which will embrace the findings, observations and recommendation.