ISAAC ASABOR
The Advertising Association of Nigeria (ADVAN) and the Advertising Regulatory Council of Nigeria (ARCON) have been embroiled in a legal battle that continues to escalate. This dispute centers on regulatory frameworks, constitutional concerns, and the role of both organisations within the advertising industry.
Recall that ADVAN had in November 2023 stated that its decision to take ARCON to court was to challenge some of the aspects of the agency’s new law, which it described as ‘Clearly unconstitutional in their provisions’.
At the time under reference, the Executive Council of the association, in a statement tagged ‘Reason for Suit Against ARCON’, stated that while the association is ready to support any reform geared towards industry development, and pursued within the confines of the nation’s constitution, it will, however, challenge any of such laws that infringes on the constitutional rights of the advertisers.
ADVAN said that its decision to take the apex regulatory body in the nation’s advertising industry, ARCON, to court is to challenge some of the aspects of the agency’s new law, which it described as ‘clearly unconstitutional in their provisions.
The Executive Council of the association, in a statement tagged ‘Reason for Suit Against ARCON’, stated that while the association is ready to support any reform geared towards industry development and pursued within the confines of the nation’s constitution, it will, however, challenge any of such laws that infringes on the constitutional rights of the advertisers.
One of such, it stated, is the ARCON’s remit of the law, which it disagreed with, especially the section, which it said, gives ARCON the power to regulate advertisers.
“Here, ARCON states in its new law, that it now regulates advertisers (all corporate entities that utilise advertising) even though they do not engage in the business of advertising. ADVAN is asking the court to clarify if a regulator can move beyond its mandated regulatory jurisdiction, to regulate the clients/ beneficiaries of services of its regulated. For instance, who does the Nigerian Bar Association (NBA) regulate? Lawyers, or clients of lawyers?
“Our understanding of regulations, globally, is that they are for those registered in an industry or profession, not the clients or beneficiaries of the services, as the ARCON law has stated,” the association argued.
ADVAN also queried the regulatory body’s definition and interpretation of advertising, describing it as incorrect since it tends closely to the definition of marketing.
“ADVAN is asking the court to clarify if a regulatory institution can change globally-accepted definitions and terminologies, arbitrarily, without recourse,” it stated.
Another axe that the association has to grind with ARCON is its setting up of the Advertising Offences Tribunal, describing it as an attempt to create extrajudicial system under an executive arm of government.
“Nigeria as a democratic entity has clear separation of powers between the different arms of government. For a regulatory body to set up a tribunal with powers to hear, try and pass judgment is clearly in breach of the constitution of the nation. A regulator cannot, by any definition, take the place of the courts,” it argued.
ADVAN also queried the ‘powers of the council’ to investigate and compel public and private organisations to produce advertising and marketing communications-related information, have access to books, including financial records of organisations licensed by the council, among others.
The above section, it argued, interferes with the right of advertisers to conduct legal private business.
“ADVAN is asking the court to clarify if a regulator of private business practice can demand access to financial records without a court order,” it stated.
It is also argued against the newly introduced Advertising Industry Standards of Practice (AISOP), which, it stated, determines commissions and payment terms for advertisers, arguing that payment terms, globally, are not by legislation, but under private contractual terms.
“ADVAN has researched payment methods globally, and findings from this research show that there are no legislations around contract and payments terms for stakeholders within an industry,” it stated.
At the moment, the ongoing dispute seems to have intensified as ADVAN has initiated a fresh legal offensive against ARCON after initially withdrawing its lawsuit.
As gathered, ADVAN says the decision follows strategic consultations with its legal agents, and in view of emerging critical developments.
“This move marks a pivotal shift in our strategy, aimed at ensuring a more efficient and effective resolution. The newly filed proceedings have been meticulously crafted and reviewed, ensuring that they comprehensively address all discrepancies and irregularities within ARCON’s operations,” the statement credited to ADVAN President, Osamede Ubanwanmen, says.
Also, the ADVAN President had remarked, “So many developments have been shocking to people in the industry. It’s been two weeks since and there’s no trace. No one has reached out to ADVAN. For us, withdrawal was an intentional move.”
Still speaking from the same point of view, he added, “ADVAN’s commitment to advocating for reasonable, globally accepted standards in marketing and advertising regulations remains steadfast. We believe that these new legal actions will not only bring about prompt redress but also set a precedent for upholding the highest standards within the advertising industry.
“Our resolve is unwavering, and we will continue to explore every possible avenue to achieve a lasting and equitable resolution to these pressing issues. ADVAN is dedicated to protecting the interests of advertisers and ensuring a fair regulatory environment for the industry as a whole,” he concluded.
Since the imbroglio began to rage, not a few industry observers were unanimous in their views that ARCON’s role should be clearly defined, balancing regulation with industry growth, while others emphasize the need for collaboration between ADVAN and ARCON to foster a thriving advertising ecosystem.
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