Established in 1988 by the Advertising Practitioners Registration Act, the Advertising Practitioners Council of Nigeria (APCON) is dedicated to promoting responsible and ethical advertising practices. APCON is responsible for vetting advertisements in order to ensure that they conform to the Code of Advertising Practice (the Code) and the Advertising Practitioners Act (the Act) in general to ensure the public’s protection.
APCON has always exercised its influence over traditional means of advertisements such as televisions, radios, billboards and newspaper and levies sanctions on businesses whose advertisements are not vetted prior to publication or exposure. However, on September 4th 2019, the Acting Registrar of APCON, IJEDI PHILOMENA IYOHA, announced that the regulatory body planned to begin regulating adverts before they are published or broadcast on social media, relying on Article 21 and 80(a) of THE CODE OF ADVERTISING PRACTICE which provides that:
“all communication materials regardless of the medium to be exposed must duly be vetted by APCON before such content is exposed to the public.”
It is reasonable to anticipate that APCON’s extension to social media will be met with resistance as most people or companies that advertise on social media are not advertising practitioners and it may not be pragmatic to compel social media uses to seek approval from APCON.
Firstly, there are no adequate machinery to implement the enforcement of the regulation. The numbers alone are staggering: as of 2019, statistics show that there are nearly 113 million internet users out of an estimated 200 million global population. Secondly, would this requirement only apply to users who upload their advertisements in Nigeria? Would that then extend to expats visiting the country? Monitoring these advertisements will require a great deal of expenditure and man hours to be effective.
Additionally, the Code provides that only advertising practitioners (APs) may apply to APCON for advertisement vetting. Consequently, applicants will incur additional fees as where social media users could previously post an advertisement at any time from their phone, they would now need to pay for the services of an AP. Moreover, the enforcement of APCON’s mandate would have a negative influence on SMEs who advertise their services using social media. In order to obtain APCON’s approval to advertise, they would need to pay additional fees which many SMEs may consider to be exorbitant and may affect their growth rate. Given the already unfriendly environment for small businesses, the enforcement of such payments will worsen the situation. SMEs contribute about 30% to the Nation’s GDP and a decline in the productivity of SMEs will affect the Nigerian economy significantly.
Furthermore, in two stated cases, the Court of Appeal held that APCON cannot compel non-advertising practitioners to seek approval from APCON prior to placing an advertisement. In MIC Royal Limited v. APCON (2018) the Court of Appeal considered the applicability and scope of the Act to persons/entities who are not members of the advertising profession and ruled that APCON’s powers did not extend to people who are not advertising practitioners. Similarly, in APCON v. The Registered Trustees of International Covenant Ministerial Council & Ors. (2010) the Court of Appeal held that as the Respondents were not advertising practitioners as envisaged by the Act, APCON could not compel them to seek approval from APCON prior to placing an advertisement.
In other jurisdictions such as the UK, the law does not require advertisements on social media to be subject to the approval of the regulatory bodies. However, they do require that advertisements be labelled and identifiable as such, to consumers, so that they understand that such advertisements were sponsored. The usage of hashtags like #ad, #sp, and so on, will suffice.
Technology has found a way of permeating most aspects of our daily lives and activities, the advertisement industry inclusive. Unlike olden times, where advertising was deemed to be the job of practitioners, the world has evolved in such a way that non-practitioners can now advertise in order to propel their businesses. It is imperative for the council to note that imposing applications on Social Media advertiser is unfair, unfeasible and has wider repercussions that they likely anticipate.
The contents of this news alert are meant for the general information of our clients and friends and do not amount to legal advice. All enquiries on the subject may be made to: email@example.com
Adepetun Caxton-Martins Agbor & Segun
9th Floor, St. Nicholas House, Catholic Mission Street, Lagos Island, Lagos State, Nigeria.
Telephone: +234 (1) 462 2094; 462 2480; 740 6743 Fax: +234 (1) 461 3140