Court Of Appeal Rules On The Applicability Of The Advertising Practitioners (Registration Etc.) Act And The Nigerian Code Of Advertising Practice & Sales Promotion

Advertising is crucial to the success of any business venture. In Nigeria, the Advertising Practitioners (Registration, Etc.) Act No. 55 of 1988, CAP A7 Laws of the Federation of Nigeria 2004 (the “Act”) provides the statutory framework for the regulation of advertising practitioners. The Act established the Advertising Practitioners Council (“APCON”).

In furtherance of its functions and powers, the governing council of APCON approved, and issued the 5th Nigerian Code of Advertising Practice & Sales Promotion (the “Code”) effective January 2013. The Code is enforced by the Advertising Standards Panel (“ASP”) through a vetting process to ensure that all advertisements conform with prevailing laws as well as the code of ethics of the advertising profession. The Code also prescribes a minimum penalty of N200,000 (Two Hundred Thousand Naira) for the publication or exposure of an advertisement without the ASP’s approval.

In an apparent exercise of the powers set out in the Code, APCON has been known to levy sanctions on businesses whose advertisements are not vetted prior to publication or exposure. APCON’s 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.

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.

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.

This new development raises issues pertaining to: (i) the definition and scope of an advertising practitioner; (ii) the ability of APCON to regulate persons who are not advertising practitioners, but nonetheless utilize social media platforms to advertise their goods and services; and (iii) the need for adequate statutory provisions to deal with the current reality.

For further enquiries, please contact litigation@banwo-ighodalo.com . Kindly click here to download a certified copy of the judgment.