This is an often heard complaint from telecoms service subscribers ‘I am subscribed to a post paid service of a mobile telecoms service provider yet I get more than a handful of unsolicited advert related text messages which directly or indirectly emanates from the telecoms company I’m subscribed to. I have sufficient reasons to believe that my service provider either gives out my phone details to potential advertisers or advertises on their behalf perhaps for a fee, the result of which is that I am constantly bombarded with unsolicited text message advertorials. So my phone keeps beeping every now and then and I rush to pick the phone expecting to open an important business message or a message from a loved one only to find out that it is an advertisement. If this happens for a post paid line which is supposed to be the premium package, I can imagine that the regular lines are dustbins for all manner of unsolicited messages.’

One has heard similar complaints from several people and this is now indeed common place. One cannot but wonder if when a subscriber pays for a telephone or mobile line, whether the line is not his property and whether the telecoms service providers do not require permission before sending advertisements. My legal mind therefore considers in this piece whether or not the intrusion, into a subscriber’s line and life by extension, in this manner is acceptable. Could this be said to be a disregard for the rights of consumers of telecoms services or a legitimate and acceptable practice in the sector?

It is an undeniable fact that consumers of telecoms services in Nigeria are no longer the few who were endowed with economic power to own a phone in those days when only a few could afford the available lines. Presently the decision not to own a phone is no longer about inability to afford a phone because of very high cost or that locations of business or residence are not covered by any telecoms company, apart from very remote areas most urban and semi-urban parts of the country are covered today. Some have said that those who could afford telecoms services in the era referred to above, were victims, rather than privileged when compared with the present day consumers of telecoms services. To all intents and purposes, it is easy to agree with this assertion because deregulation of the telecoms industry, with the attendant availability of many networks providing multifarious products and services, covering far more geographical areas, with millions of Nigerians privileged to own phones services at far lower costs, supports that position. The fact that today Nigerians can also discuss the place of the consumer in the national telecoms equation, provides an insight into the elevated position of the Nigerian telecoms services consumer in the scheme of things.

Consumer protection drive in the telecoms industry further progressed to the intervention of the regulatory body in the introduction of price caps within which operators were allowed to charge customers for services provided in accordance with global best practices, eliminating charging of subscribers for calls made to customer care lines to lay complaints and the introduction of competition to ensure that consumers have a wide range of products and services to choose from and are not held to ransom by any service provider as well as the recent ability of subscribers to port to another service provider.

Despite the above undeniable advancement with regard to the heights that telecoms consumer protection has advanced in Nigeria, it is doubtful that it is Uhuru yet. It appears that there are new dimensions of protection that needs to be looked upon in line with best international practices and fundamental principles of law.

The common law principle of Trespass to goods refers to the wrongful interference with goods that are in the possession of another. “Possession” has the standard legal meaning, referring to the claimant’s right to use, control or deal with the item. The interference would usually be physical which would typically include the taking or destroying of goods, but could in the right circumstances, be as minor as touching or moving them. It is undeniable that a subscriber to a telecoms line owns the lines as long as his subscription is running and valid. Consequently, it is here opined that in today’s techie world, the sending of unsolicited text messages by service providers to the lines of the subscriber is trespass. It is akin to the entrance by a landlord or the authorisation by a landlord to another to enter into the premises of his tenant uninvited and without notice for the landlord’s own use or benefit. The difference only lies in the fact that while the later is trespass to land the former is trespass to goods. In another bit the actions of the telecoms service providers in sending unsolicited text message advertisements to the phone lines of subscribers could also be classified as private nuisance as the act in itself causes substantial and unreasonable interference with the subscribers use or enjoyment of his line.

Section 4(1) (b) of The Nigerian Communication Act, CAP N97, Laws of the Federation of Nigeria, 2004 provides that the Nigerian Communications Commission (NCC) is charged with the responsibility of the protection and promotion of the interests of consumers against unfair practices including but not limited to matters relating to tariffs, charges for the availability and quality of communications services, equipment and facilities. It follows from the above that the NCC is responsible for the protection of consumers in Nigeria. The Act seems to have taken this further by giving the NCC an exclusive competence on competition laws in the telecoms sector which is somewhat an offshoot of consumer protection. It would seem that even when the country eventually enacts a competition law, the Nigerian Communications Act would still have overriding status in the communications industry. Section 90 of the Act provides that “Notwithstanding the provisions of any other written law, the Commission shall have exclusive competence to determine, pronounce upon, administer, monitor and enforce compliance of all persons with competition laws and regulations, whether of a general or a specific nature, as it relates to the Nigerian communications market”.

While it is irrefutable that consumer protection in the telecoms sector has attained commendable heights, it goes without saying that there are subtle ways in which the rights of the consumers are presently being taken for granted as have been described above. Unsolicited text messages that are being sent by telecoms service providers to the lines of their subscribers are acts of trespass and constitute nuisance to the subscribers. The laws do not support it neither is it an acceptable practice in the industry judging from the position in other climes. The onus is on the NCC, being the body legitimately vested with responsibility for the protection and promotion of the interests of consumers against unfair practices to push further in the protection of the consumers by expressly prohibiting such acts of trespass and nuisance if the telecoms companies would not by themselves respect the legitimate rights of their subscribers to the ownership, peaceful use and enjoyment of their lines without any interruption or disturbance in the manner described above.

Nwakogo writes from Lagos

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