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APCON’s plan to regulate online advertisements: Konga founder, others react

Chidinma Nwagbara
Sim Shagaya, uLesson

Konga founder, Sim Shagaya has reacted to the Advertising Practitioners Council of Nigeria (APCON) recently-disclosed plan to regulate online advertisement, saying the move is anti-economic growth, anti-employment and not enforceable.

Shagaya who also doubles as the Chairman of DealDey, stated that many businesses will not be able to function should the plan be effected. Shagaya in a twitter post, illustrated that a platform like Jiji, which runs a business only based on offering online advertisements, cannot function if APCON decides to start regulating online adverts.

Nairametrics had previously reported when APCON released its memo threatening to take action on the exposure of adverts on any social media platform.

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This disclosure hasn’t gone down well with many Nigerians as well as they condemned APCON for wanting to introduce such process in the country on various social media platforms.

Other Nigerians react: Nigerians left no stones unturned in expressing their disgust and annoyance at APCON. Some were left puzzled as to why APCON will charge fees for vetting adverts on any of the platforms when they do not own Facebook, Twitter nor Instagram.

Others emphasized how APCON is set on killing small businesses with this new policy of theirs because it will be an extra burden on them.

Extra charges and time consuming: Nigerians also spoke on how it doesn’t make sense for them to pay an extra vetting fee to APCON for an ad that can be run quickly and yet still have to wait for a couple of weeks in order for it to be approved.

Nigerians further called on the federal government to look into these issues and solve them so as to prevent the dearth of small businesses in the country.

What you should know: In Nigeria, APCON is in charge of regulating the advert space and approving adverts for promotion of products and services.

However, the regulator seems to have been losing advert fees and its authority to the tech companies as digital adverts become more popular. APCON, however, still controls the traditional media channels – Newspaper, Television, Radio, and Billboards.

 Equipped with its 5th Nigerian Code of Advertising Practice & Sales Promotion (the “Code”) effective January 2013, APCON has been known to levy sanctions on businesses whose advertisements are not vetted prior to publication or exposure. Its contention has been that it is empowered to regulate advertisement in general and that any person or entity who publishes or procures the publication of an advertisement within the meaning of the Act and the Code is an advertiser and is therefore within the remit of its regulatory powers. 

But the above contention recently went through the crucible of litigation in the recent case of MIC Royal Limited v. APCON (Suit No. CA/L/1140/2016 – Judgment delivered on July 5, 2018) (the MIC Royal Case) where the Court of Appeal considered the applicability and scope of the Act to persons/entities who are not members of the advertising profession. 

MIC, without recourse to APCON, procured the placement of an advertisement in the Punch Newspaper of May 29, 2014. Following this development, APCON, via a Violation Notice, imposed a penalty of N500, 000 (Five Hundred Thousand Naira) on MIC Royal for procuring the advertisement without its approval. There was unchallenged evidence before the Court that MIC is a limited liability company engaged in the business of funeral homes, carpentry, joinery trade and manufacturing. 

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The Court of Appeal held that APCON’s powers did not extend to persons, including MIC who are not advertising practitioners. The Court of Appeal ultimately invalidated the Violation Notice issued to MIC. 

The judgment reinforces the earlier decision of the Court of Appeal in the case of APCON v. The Registered Trustees of International Covenant Ministerial Council & Ors. (2010) LPELR (CA) 3630. (the “APCON v. RTICM Case”). In that case, APCON directed the Respondents to submit their advertisements for vetting prior to publication. The Respondent challenged APCON’s request. The Court of Appeal upheld the lower court’s decision that the Respondents are not advertising practitioners as contemplated by the APCON Act and consequently, APCON cannot compel the Respondent to seek approval from APCON prior to placing an advertisement.  

With the advent of social media, the advertising landscape has changed dramatically over the years. Social media’s collaborative, interactive and user-generated characteristics have endeared ordinary users, advertisers and consumers to communicate their shared interests on social media platforms such as Facebook, Twitter and Instagram.

The advertising landscape is experiencing perhaps the most dynamic revolution and technological disruptions as most businesses/business-owners, who are not necessarily advertising practitioners have found a goldmine of fresh air to their advertising needs and are actively creating adverts almost on a daily basis. 

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