The Advertisers Association of Nigeria (ADVAN) has given the reasons why it filed a suit against the Advertising Regulatory Council of Nigeria (ARCON), challenging the constitutionality of its new ARCON law.
In a statement signed by the ADVAN Executive Council, the association outlined some of the areas where the constitutional rights of advertisers are breached under the new ARCON law.
It disclosed that the legal action it took was an essential response to safeguard the interests of its members and the integrity of the marketing profession in Nigeria and to also ensure that the rule of law prevails.
The statement reads, “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.”
Citing some of the aspects of the law, it pointed out that ARCON wants to regulate advertisers which is contrary to global best practices. It said ADVAN members who are also advertisers belong to various industries and are regulated by the appropriate regulators. It stated that in the legal profession, for example, the Nigerian Bar Association regulates lawyers, not clients.
“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,” it stated.
It added “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 regulations are for those registered in an industry or profession, not the clients or beneficiaries of the services.”
It also queried the definition of advertising according to the ARCON Act, it said the definition is incorrect, adding that it tends closely to the definition of marketing and not advertising. “ADVAN is asking the 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.”
In another vein, ADVAN is also asking the court to clarify section 32 of the ARCON law which seeks to register and regulate all persons that have oversight function of their organization’s advertising and marketing communication activities. (e.g. Marketing Communications Directors of Advertiser organizations).
The statement reads, “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.”
It also stated that it is strongly against section 45 of the new law conferring 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.”
It is also 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?
On payment terms for advertisers as stipulated in its Advertising Standard of Practice, it explained that globally payment terms are under private contractual terms or as best industry practices – agreed by stakeholders within an Industry as a gentleman’s agreement, not as legislation.
“As a member of the World Federation of Advertisers, ADVAN has researched payment methods globally, and findings from this research show that there are no legislation around contract and payments terms for stakeholders within an Industry,” it disclosed.
It concludes that “It is on these premises 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.”
