The ADVAN suit against ARCON is focused on aspects of the new ARCON law that are clearly unconstitutional in their provisions ADVAN supports any reform that is geared towards industry development and is pursued via the stipulations of the nation’s constitution.
Here we outline a few areas where the constitutional rights of advertisers are breached under the new ARCON law
REMIT OF THE LAW
1) S1, 2d Notwithstanding the provisions in any other Act, have exclusive power to determine, pronounce upon, administer, monitor, and enforce compliance by persons and organizations on matters relating to advertisements, advertising, and marketing communication in Nigeria, whether of a general or specific nature.
The above section of the ARCON law essentially states that it can override any other legislation or regulation as it pertains to advertising and marketing communications in Nigeria – ADVAN seeks clarity on this, as there are various industry regulators that also regulate advertising content for its members
2)▪S2 The provisions of this Act applies to —
▪ S2a Individual, organization, body corporate or agency of the Federal Government, State, or Local Government which engages in, regulates, sponsors or takes benefit of advertising services, advertisements, and marketing communications services; and
▪ S2b Any person who sponsors or takes benefit of an advertising, advertisement, or marketing communications services within the provisions of this Act.
ADVAN Members belong to various industries and are regulated by the appropriate regulators of those industries.
Here ARCON states in its new law, that it now regulates advertisers (All corporate entities that utilize 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 (Eg Who does the Nigerian Bar Association regulate? Lawyers or clients of Lawyers?)
Our Understanding of regulation globally is that regulation are for those registered in an industry or profession, NOT the clients or beneficiaries of the services.
The ARCON law states that it now regulates ALL sponsors and beneficiaries of advertising and marketing communications.
INTERPRTATION AND TEMINOLOGIES (ACCORDING TO THE ARCON ACT)
Advertising means any act, action, activity, construct, or undertaking directly, or indirectly, intentionally, or unintentionally, aimed at creating, planning, strategizing, managing, developing, producing, propagating, servicing, or facilitating an advertisement, brand, or marketing communications ideas.”
This definition of advertising is incorrect The definition tends closely to the definition of marketing and not advertising ADVAN is asking court to clarify if a regulatory institution can change globally accepted definitions and terminologies arbitrarily without recourse. If regulatory bodies can now decide their own definitions and terminologies of existing and approved terms, as it suits them.
PRIVILEGES OF REGISTERED PERSONS AND OFFENES BY UNREGISTERED PERSONS
4)S31. (1) A person not being registered in accordance with this Act, shall not be entitled to hold any appointment in the public service of the Federation or of a State or in any public or private establishment, body, or institution if the holding of a such appointment involves the performance by him in Nigeria of any act pertaining to the profession for gain.
S32. (1) An individual or organization, not being registered in any register established under this Act who has failed, refused or neglected to comply with the conditions and requirements for advertising, advertisement, and marketing communications as stipulated under this Act, or who uses any name, title,
description or symbol calculated to lead any person to infer that he is engaged in advertising, advertisement or marketing communications commits an offence and is liable on conviction.
ADVAN is asking that the court clarify if the above section of the ARCON law seeks to register and regulate all persons that have over sight function of their organizations advertising and marketing communication’s activities. (e.g. Marketing Communications Directors of Advertiser organizations)
ADVAN is of the understanding that a business can utilize the services of any professional (person or organization) without needing to be registered with the professional/regulatory body in charge. As is the case, Accountants, Auditors etc.
ADVAN is asking the court if a business should not have the right to oversee work done by professionals without necessarily needing to be registered or regulated in that profession.
ADVERTIING OFFENCES TRIBUNAL
5)S37. (1) There is established under this Act, the Advertising Offences Tribunal (in this Act referred to as “the Tribunal”).
(2) The Tribunal shall adjudicate over offences created under this Act, Code of Advertising Practice, Standard of Practice, Proclamation and other relevant enactments made under this Act.
(3) The Tribunal shall exercise the jurisdiction, powers and authority conferred on it under this Act or any other enactment.
S43. (1) The Tribunal shall have and exercise jurisdiction and powers in respect of criminal cases and offences created under this Act.
THE ADVERTISING OFFENCES TRIBUNAL
S45. Notwithstanding the provisions of any other enactment conferring power to search, if the Chairman of the Tribunal is satisfied that there is a reasonable ground to suspect that there may be found in any building or other places, any book, record statement, or information in any form, which, in his opinion are or may be material to the charge or any trial under this Act, he may issue a warrant under his hand authorizing any police officer or any member of the security agencies to enter, if necessary by force, the said building or other place and every part of it, to search for, seize and remove any material from it.
The above stipulations of the ARCON Law seeks to create an 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.
The above section confers on ARCON the powers to issue a search warrant into private business when it deems fit. This again goes against the rights of advertisers to conduct legal private business. A regulator cannot by any definition take the place of the courts.
POWERS OF THE COUNCIL
(g) Investigate and compel public and private organizations to produce advertising and marketing communications-related information.
(h) Have access to books including financial records of organizations licensed by the Council.
(j) Compel public and private organizations to use only bodies corporate licensed under this Act for advertising and marketing communications services in Nigeria.
(k) Compel public and private organizations to disclose all advertising service providers engaged by them;
The above section clearly 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? Or compel organizations to disclose private business matters?
Finally that ARCON has gone ahead to establish an Advertising Standard of Practice that determines commissions and payment terms for advertisers.
Globally payment terms are under private contractual terms or as best industry practice – agreed by stakeholders within an Industry as a gentleman’s agreement, not as legislation.
As a member of World Federation of Advertisers, ADVAN has researched payment methods globally, and findings from this research show that there are NO LEGISLATON around contract and payments terms for stakeholders within an Industry.
It is on these premise as well as other very salient issues (Quite extensive that we are not able capture all here) that we saw no other option but to seek judicial clarification.
Signed: ADVAN Executive Council