Constitutional Issues Bedeviling the ARCON Act 2022
Man’s unending need for goods, services, and other necessities of life has made trading an inevitable venture. While human needs remain constant, innovation has transformed how they are fulfilled.
One of these innovations is the practice of advertising and marketing, which became digitized due to globalization. Due its inevitable nature in this modern world, Nigeria enacted the Advertising Regulatory Council Act 2022 (ARCON Act)[1] to repeal the Advertising Practitioners Act(APCON ACT)[2] and to bring Nigeria up to speed with the world best practices and trends, among other things[3].
The repealed Act’s scope was expanded beyond advertising practitioners, granting the Council power over any individual or entity that sponsors or benefits from advertising or marketing communication services.[4]. However, while it appears to be the intendment of the legislature to be a step towards making our laws up to date with the best industry practices, it is however based on that broad scope of the council’s powers that the question of constitutionality now arises, with specific reference to the powers of the Advertising Standards panel (ASP).
ARCON’s ASP and Freedom of Expression(Section 39 1999 CFRN)
The ASP is the arm of the council empowered to vet and approve all advertisement and communication materials meant to be exposed to Nigerians before publication.[5] This provision is not made light as its violation can be met with a jail term for as long as 6 months.[6]
But that as it may, a juxtaposition of the powers of the ASP provided in the ARCON Act, with Section 39 of the constitution would reveal a disparity, and it is an age old principle of Law that any act contravening the constitution will be null and void to the extent of the inconsistency[7].
To depict the disparity between the provision of the act and the constitution, a juxtaposition of the provisions of the two laws is necessary.
Section 39 of the constitution establishes the fundamental human right to freedom of expression and the press, and it has been explained by the court of appeal in the case of I.G.P. v. A.N.P.P.[8]as the bone of any democratic form of government enshrined and endorsed in our supreme law of the land, the African Charter on Human and People’s Rights and a plethora of decisions of our courts.
The section provides that:
(1) Every person shall be entitled to freedom of expression,
including freedom To HOLD opinions and TO RECEIVE and IMPART IDEAS
AND INFORMATION WITHOUT INTERFERENCE.
(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and
OPERATE ANY MEDIUM for the DISSEMINATION of INFORMATION, IDEAS AND OPINIONS.(Emphasis mine)
The ARCON act on the other hand empowers the Advertising panel in Section 9(F) to vet all advertisements. Now the core of this disparity lies in the definition of advertisement stated in the act which is:
“a notice, announcement, exposure, publication,
broadcast, statement, announcorial, informercial, commercial, hype, display,
town cry, show, event, logo, payoff or trademark to promote, advocate, solicit, showcase, endorse, vote or support a product, service, cause, idea, person or organisation with the intention to influence, sway, actuate, impress, arouse, patronise, entice or attract a person, people or organisation by an identified sponsor irrespective of media, medium or platform”[9]
From the above mentioned definition of advertisement, it is clear that Advertisement is the communication of an idea, opinion or preference of an entity, to a recipient through physical or virtual means.
When Section 9(f) of the ARCON Act, which mandates ad vetting before publication, is examined against Section 39 of the Constitution, a clear inconsistency emerges.
While, it is a well known fact that virtually every fundamental human right has its limitations as Sections 45, 4(2) and 11 of the constitution gives the national assembly the power to make such limiting laws. However, it does not create an avenue for a blanket limitation of a fundamental human right by the government, however pure their intentions may be. And the specific right being threatened here is the corollary right to Freedom from Initial and subsequent censorship and right to freedom from prior restraint under the right to freedom of expression.
This was the opinion of Adekeye JCA (as he then was) in the case of IGP V ANPP where the said freedom of expression and freedom of movement was curtailed in a similar fashion by the Public Order Act. In the case, Adekeye JCA held in unison with the United States supreme court decision in Shetton v. Tucker[10] that
“Even though the Government’s purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties.”
It is necessary to note that the laws that limit the right to freedom of expression such as those prohibiting the publication of obscene, defamatory, or seditious words do not require that such content/post/publication be subjected to scrutiny before publication.
Rather, it simply prohibits the act and stipulates penalties for the prohibition (i.e in a reactive manner.).
This practice of subjecting such publications to prior scrutiny before publication is what is known as “Prior restraint”, and it has been frowned at in the legal systems of first world nations like the United States of America whose advanced advertising practices we measure our standards by.
And just like the Public order Act met its end in the case of IGP V ANPP(supra), the Minnesota Public Nuisance Abatement Law was struck down in Near v. Minnesota[11] as a constitutional principle establishing the doctrine that the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.
This is in line with the ratio of Adekeye JCA (as he then was) in the case of IGP V ANPP(supra) where he also noted that
“If as speculated by law enforcement agents that breach of the peace would occur, our criminal code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.”
It goes without saying that what would be more constitutional would be for the ARCON Act to simply prohibit certain advertising practices and stipulate penalties for its violation (which it has already done in the Nigerian Code of Advertising 2023) rather than prior scrutiny.
ARCON vs Freedom of Association (Section 40 1999 CFRN)
It would also seem that even the right to freedom of association enshrined in Section 40 is threatened by Section 21(1) of the ARCON Act. The said section mandates every person who intends to practice advertising to be registered under the act.
To analyse the constitutionality of this blanket provision, one must make recourse to the exclusive legislative list and concurrent legislative list provided in Part I and Part II of the Second schedule of the 1999 constitution respectively.
Item 49 of Part 1 of the second schedule of the constitution states the power of the national assembly to make laws that govern “professional occupations as may be designated by the national assembly” which in this case would be individuals who offer advertising and advertising related services for a pay. However, nowhere does it legitimize the extension to individuals who choose to self-advertise for personal benefit. Hence, this mandatory requirement to be registered under the act irrespective of the nature of one’s involvement in advertising raises serious concerns.
And albeit a join reading of Item 66 and 68 of the Exclusive list might be inferred to encompass individuals who self-practise, such an interpretation would be as ludicrous as saying any person who wants to represent himself in court must first register under the Legal Practitioners Act(LPA)[12]
Under Nigerian law there is no restriction on any person who wants to represent himself in any court in Nigeria, specifically in civil matters. And while self-representation in court is not always advisable, this is made possible because more often than not, disputes are finalised in inferior courts which usually have summary jurisdictions and require no tedious litigation procedures this facilitating the process for the less privileged to get access to justice without needing to pay for the expensive services of a lawyer.
However if one intends to represent himself even up to the supreme court there is no legal limitation preventing such a person from doing so. The only legal limitation placed is that only a legal practitioner duly registered under the LPA can represent another person in court i.e as a client. This is my own opinion on how the ARCON should be limited to individuals who choose to practice for a pay i.e as professionals.
The same way stipulating that everyone who intends to represent himself in court must be registered under the LPA would further limit the access to justice for the poor, is same way requiring all who seek to advertise to be registered and submit all their ads for vetting would only amount to an erosion of the right to freedom of expression and freedom of association.
It is well understood that the aims of the ARCON act is to fill the loopholes in the APCON act uncovered in the Court of appeal decisions in MIC Royal Limited v. APCON [13] and APCON v. The Registered Trustees of International Covenant Ministerial Council [14] where it was held that its powers did not extend to non-advertising practitioners.
Proponents of ARCON’s vetting process might argue that it is necessary to prevent misleading advertisements or harmful content. However, this justification does not hold upon closer examination. Existing Nigerian laws, such as the Obscene Publications Act[15] and the Criminal Code Act (Chapter 21A)[16], already impose penalties for deceptive or illegal content post-publication. Thus, the ARCON Act’s prior restraint mechanism is unnecessary and overly restrictive. But better yet, the ARCON can dive deeper into creating more offences against dishonest or immoral statements (like the Code of Advertising) and reserve a power in the government to block out such publications electronically [17] or otherwise as the case may require as even other laws such as Section 233E of the Criminal code legitimize such seizures.
In conclusion, while regulation is necessary to prevent false advertising, prior restraint is evidently not the best approach, as seen in other jurisdictions. In America, the Federal Trade commission(FTC) is the institution saddled with responsibilities similar to that of the ARCON. However unlike the ARCON, the FTC doesn’t employ Prior Restraint, rather it focuses on post publications regulation[18], and yet it is highly effective in ensuring the prevention of false, deceptive and manipulative advertising as it even gives room for consumers to report such adverts directly to the commission.
Ultimately, while ARCON’s intent to regulate advertising is commendable, its current framework overreaches constitutional limits. A more balanced approach would focus on penalizing misleading ads post-publication rather than imposing prior restraint. Future discussions should explore additional constitutional concerns and propose viable legislative amendments.
References
1- Advertising Regulatory Council of Nigeria Act, 2022
2- Advertising Practitioners (Registration, etc.) Act, Cap. A7, Laws of the Federation of Nigeria, 2004
3-Section 2(1) (A-I) ARCON ACT 2022, specifically Section 2(1)(D)
4- Section 2(2) ARCON ACT 2022
5-Section 9(f) ARCON ACT 2022
6- Section 54 of the ARCON ACT 2022
7- Section 1(3) 1999 constitution of the Federal Republic of Nigeria
8- I.G.P. v. A.N.P.P. (2007) 18 NWLR (Pt. 1066) 457 (Pp. 494-495, paras. H-A)
9- Section 63 ARCON ACT 2022
10- Shetton v. Tucker 364 US 479,488 (1960)
11- Near v. Minnesota,(1931) 283 U.S. 697. Advertising Law: 2022 Federal Legislation and Social Media(Published by G. Elias in 2022)
12- Legal Practitioners Act Cal L11 LFN, 2004
13- MIC Royal Limited V APCON (2018)LCN/11854(CA)
14- APCON V THE REGISTERED TRUSTEES OF INTERNATIONAL COVENANT MINISTERIAL COUNCIL(ICMC) & ORS (2010)LCN/3910(CA)
15- Obscene publications act 1961
16-Criminal Code Act L.N. 112 of 1964
17-Advertising Law: 2022 Federal Legislation and Social Media(Published by G. Elias in 2022)
About Author
Isah Ibrahim Egya is a law student of Faculty of Law Ahmadu Bello University, Zaria. He is experienced in the direct-response copywriting and marketing world, and he can be reached via +2348108261659 or [email protected].
