In a landmark decision, the Federal High Court has provided clarification on the powers of the Advertising Regulatory Council of Nigeria (“ARCON”) to regulate advertising including the power to oversee advertising activities on social media platforms (the “Ruling”). This Ruling was delivered by Honourable Justice Aluko in a suit filed by Digi Bay Limited (operating as Betway Nigeria), Super Group Limited, and Otunba Kunle Olamuyiwa, against the Attorney General of the Federation and ARCON where they sought clarification on the scope of ARCON’s powers to regulate online advertising and unlicensed advertising practitioners. Key highlights of the Ruling include:
- 1. Who can be regulated by ARCON? The court confirmed that ARCON has the power to oversee advertising across all platforms irrespective of the parties involved. The basis for the court’s decision is that the scope of ARCON’s powers is determined by the activity and not the licensing status of the persons involved in the activity. Regarding social media platforms, the court held that, given that they provide a public forum/channel used to advertise to large audiences, their advertising activities are to be regulated by ARCON. The court further explained that ARCON’s powers extends to any person or entity involved in advertising, regardless of whether they are licensed by ARCON.
- 2. Sanctioning by ARCON: The court further held that while ARCON has the power to issue violation notices and letters of infraction, only the Advertising Offences Tribunal has the authority to determine and enforce penalties for advertising offenses.
- 3. Mandatory Vetting of Advertising Content: The court also ruled that all advertising content must be vetted by the ARCON before being published or aired, regardless of who is responsible for the content.
Conclusion
The Ruling confirms ARCON’s regulatory authority over all advertising in Nigeria. This reinforces the legislative intentions to empower ARCON in this regard, and brings to an end any debate about ARCON’s power to regulate advertisement on social media platforms. In the past, ARCON has made enforcement efforts against social media platforms, and as such, it is anticipated that these efforts may increase in the coming months. Operators and other secondary platform owners within the digital advertising sector must therefore familiarise themselves with the Ruling and its implication on their operations.
For more information on this article, please contact us at tmtpractice@aluko-oyebode.com.
Our Associates, Yetunde Olashore and Biboye Timipere, contributed to this article.
