Since the introduction of the Advertising Regulatory Council of Nigeria’s new regulation, practitioners have expressed divergent views about it, writes EDIDIONG IKPOTO
For almost two years, the Advertisers Association of Nigeria has been at loggerheads with its regulator, the Advertising Regulatory Council of Nigeria, over some sweeping reforms the latter has introduced into the advertising and marketing communications ecosystem.
ARCON, formerly known as the Advertising Practitioners Council of Nigeria, officially assumed a new status in 2022 after the National Assembly gave the nod for the defunct APCON to snowball into a more powerful apex regulator for the industry. Consequently, the agency became armed with a more robust mandate to regulate the advertising industry.
To fully consummate its emboldened status, the council decided to rewrite the law guiding the practice of advertising in Nigeria. The new law seeks to comprehensively upend the ecosystem and rid it of certain practices the council considers sharp and potentially injurious to the industry. It also prescribes jarring penalties for offenders, including jail terms.
The law has since met with fierce criticism from advertisers, who argue that its stipulations run contrary to Nigeria’s grand norm and would stifle the growth of the advertising industry.
In his pushback, the ARCON Director-General, who formerly served as the registrar of APCON, Olalekan Fadolapo, insisted that the new law had come to stay. According to him, the industry had been overrun by shoddy practices, which prompted the need for stronger regulations.
While speaking in an interview with The According, the ARCON DG also queried claims that the new law ran foul of the Nigerian constitution.
He said, “My question to them is, which section of the Constitution? It is not enough to say that the law is in breach of the Constitution. You should be able to specifically state which part of it. The spirit and letter of the Constitution are equity, fairness, and justice.
“They should be able to come out and state the specific provision of the Constitution that is being breached. Then we will reply to them. When you say something is unconstitutional, how do you want to address it? We want them to come out with specifics. Then, we will reply to them and explain better.”
Advertisers react
Beyond the legal dimension of the fray between the two entities, a focal argument of the advertisers is that the new law effectively changes the widely accepted definition of advertising.
According to marketing communications scholar, William Stanton, advertising consists of all activities involved in presenting to a group a non-personal, oral or visual, openly sponsored, identified message regarding a product, service, or idea. The message, called an advertisement, is disseminated through one or more media and is paid for by the identified sponsor.
This definition, which reflects the position of communication scholars of different eras and orientations, places a strong emphasis on an important ingredient which differentiates advertising messages from other forms of communication initiated for persuasion purposes.
This important ingredient, according to experts, is that advertising is a ‘paid form of communication’ by an ‘identifiable sponsor’.
This means that a hair vendor who showcases her products or wares belonging to family and friends to her contacts on social media, despite pushing out content geared towards achieving the purpose of advertising, has not performed the function of advertising, in a strict sense of the word. This is because such messages are not ‘paid for’ and sometimes do not have identifiable sponsors.
However, Section 63 of the new ARCON law defines ‘advertisement’ as a notice, announcement, exposure, publication, broadcast, statement, ‘announcorial’, ‘informercial’, commercial, hype, display, town cry, show, event, logo, payoff, or trademark to promote, advocate, solicit, showcase, endorse, vote or support a product, service, cause, idea, person, or organisation with the intention to influence, sway, actuate, impress, arouse, patronise, entice, or attract a person, people, or organisation by an identified sponsor, irrespective of media, medium, or platform.
It goes further to define advertising as any act, action, activity, construct, or undertaking directly, or indirectly, intentionally, or unintentionally, aimed at creating, planning, strategising, managing, developing, producing, propagating, servicing, or facilitating an advertisement, brand, or marketing communications idea.
This definition of advertisement and advertising implies that by merely putting up your company logo on your website and accompanying it with a few words of puffery, such a message is construed as an advertising message liable to the standards and penalties applying to all communications within that bracket.
Since the introduction of the new law, this definition of advertising at various fora has attracted criticism from operators, who have expressed worry that certain messages geared towards creating impressions can now be viewed within the prism of advertising messages.
ARCON DG was questioned regarding the rationale behind the law’s definition of advertising, which deviates from the commonly acknowledged communication canons, at a stakeholders meeting organised by ARCON in 2022 to present the new law and its provisions.
He responded that this was the Nigerian definition of advertising. He gave the same response when a similar question was posed at an event organised by the Nigerian-American Chamber of Commerce in 2023.
Legal ramifications
According to section 58 (3) of the ARCON law, the Federal High Court shall have jurisdiction to determine any issue arising from or concerning the operation of this Act and advertising and marketing communications control and practice in Nigeria.
However, the Federal Government last year constituted a tribunal for adjudication of offences created under the Advertising Regulatory Council of Nigeria Act No.23 of 2022.
ARCON, which announced in a statement in May 2023, said Cecelia Olatoregun, a retired justice, was named as the tribunal’s chairman.
The council said four other members of the tribunal: Charles Odenigbo, Moroof Aileru, Julia Jacks and Idorenyen Enang were appointed.
ARCON said Lai Mohammed, the then minister of information and culture, made the appointments in line with section 38 of the ARCON Act 2022.
The creation of the tribunal has since been met with protests by advertisers, who believe that allowing the regulator to set up a tribunal that would hold ‘trials’ for any persons or organisations that contravene the provisions of the ARCON law essentially violates the essence of ‘justice’, which requires a level playing field for all parties.
To them, the provision was an extremely concerning development because Nigeria, as a democratic entity, has a clear separation of powers between the different arms of government.
“A regulatory body for advertising cannot set up a tribunal with powers to hear, try, deliver judgment and sentence, as such is clearly a violation of the Constitution of the nation.
“ARCON cannot constitutionally act as both the prosecutor and the judge in relation to matters which they have by themselves labelled as advertising offences,” ADVAN said in a statement.
While speaking with The According, ADVAN President, Osamede Uwubanmwen, argued that the model of allowing regulatory agencies to convict culpable offenders was tantamount to giving them the power of judge, jury and executioner.
He further pointed out that, in recognition of this anomaly, a Federal High Court had overturned certain fines that were imposed on some radio stations by the National Broadcasting Commission.
On his part, a legal practitioner, Olu Akinola, said some provisions of ARCON run contrary to the Constitution of the Federal Republic of Nigeria.
According to Akinola, the Act arrogates the powers of the court to itself by imposing prison sentences on the so-called violators, saying that runs contrary to the constitution.
He maintained that the provisions of the ARCON Act would be struck out if tried before the court.
He said, “People should go to court and challenge these provisions. These provisions contradict the Constitution. ARCON wants to set up a tribunal and that tribunal will sit and conduct a criminal trial with the power to sentence people, no! This violates the Constitution. With what I saw here, they are already constituting a court.”
Stakeholders consultation
One of the bullet points made by ADVAN in its criticism of the new ARCON law is that there was inadequate consultation of industry stakeholders while the law was being drafted.
While speaking in an interview with The According, the ADVAN president described the process of documenting the new law as one that premeditatedly avoided input from stakeholders.
He said, “If you want to have a law such as this, what you should do is have the draft reviewed by all the stakeholders in the industry.
“They should come and tell us where this draft was reviewed. The draft was meant to be brought to stakeholders for review. Where did they have such consultations?
“If you ask stakeholders to review a draft of what is meant to be a law, do you think what comes out of it can really be considered a law?”
In his response, Fadolapo dismissed ADVAN’s claim that adequate stakeholders’ consultation was not embarked upon while the law was being drafted.
According to Fadolapo, the association’s grouse centres around the fact that its submissions were not captured. He queried why ADVAN had resorted to claiming that it was not carried along in the drafting process.
He said, “There are two levels of consultation. There is legislation that we do in our own office, which is a sub-law. What the National Assembly does is the enabling Act. When we wanted to do the ISOP, we set up a committee of all the sectoral groups, including ADVAN. The committee met several times and concluded its report. They brought their report to us; we reviewed it and sent it out.
“The director of legal services of the ministry (of information), made some alterations to the report. After a series of meetings, we came back and made a pronouncement. They claimed that they made submissions that were not captured. Other times, they had said they were not engaged.
“There was no time that we had an industry pronouncement that ADVAN was not part of it. We had a code review meeting, and they were part of that meeting. So, at what point did we not involve them?” he questioned.
According to Fadolapo, ADVAN was part of the code review and was also part of the ISOP committee.
“This law was passed by the National Assembly, and they (the National Assembly) called for a public hearing and everybody was there. We all attended the public hearing. So, what are we going to do again?” the ARCON DG wondered.
