Legal Framework Applicable to the Facilitation of Digital Content in Nigeria
By making the world a global village, the internet has spearheaded the seamless transmission of data and digital content across jurisdictions from the comfort of homes through the use of our computer systems and mobile telephones. From messaging and other forms of online communication transmissions to the sharing of media and entertainment and to the completion of transactions in the sale of goods and services, digital content is constantly being shared across countries, and Nigeria has not been left behind in the digital content boom. In November 2019, the Nigerian Communications Commission (NCC) reported the number of active internet users in Nigeria at almost 123 million, which was up from about 109 million in 2018.
Some of the types of digital content available to Nigerian users include, among others, services that facilitate user communications such as social media and messaging services, services that facilitate the creation and delivery of amateur and professionally produced content, and digital marketing services. As the digital services market continues to grow, regulators have struggled to catch up with regulating a content space that is constantly evolving. This article will consider some of the legal and regulatory considerations that affect the provision of the digital services listed above.
In this article ‘digital content provider’ and ‘online platform’ may be used interchangeably to refer to creators of digital content as well as platforms through which these contents are shared and made available to users within Nigeria, each phrase may imply the meaning of the other.
2. Legal Considerations Involved in the Provision of Digital Content in Nigeria
Nigerian users have access through several online platforms, to digital content shared by local and international content providers. However, for the purpose of doing business in Nigeria, providers who make these contents available to users in Nigeria may be required under the Companies and Allied Matters Act to incorporate as Nigerian companies where they intend to carry on business in Nigeria. The phrase, carry on business, was illustrated by the Court of Appeal’s decision in Edicomsa International Inc. and Associates v. Citec International Estates Ltd, a case involving a foreign company who entered into agreements with a Nigerian company to design and build housing units in Abuja, Nigeria. When disagreements ensued concerning payments due to the foreign company, it sued in the Nigerian courts for breach of contract. The Court of Appeal defined the phrase “carrying on business” thus:
“To carry on business means to conduct, prosecute or continue a particular vocation or business as a continuous operation or permanent occupation. The repetition of acts may be sufficient. It also means to hold oneself out to others as engaged in the selling of goods or services”
The Court then held that a foreign company carrying on business in Nigeria without incorporation as a Nigerian entity is liable upon conviction to the fines prescribed under the Companies and Allied Matters Act and all its acts are void under the law. The prescribed fines are negligible, not very proscriptive and may not act as a deterrent to foreign companies engaging in business in Nigeria without registering as Nigerian entities.