The Advertising Regulatory Council of Nigeria (ARCON) took Meta Platforms Inc, the parent company of Facebook, Instagram and WhatsApp to court the other day, joining AT3 Resources Limited to the suit.
This suit was commenced as an enforcement of Act No. 23 of 2022 which has provided guidelines for advertisers and advertising agencies.
Basically, ARCON is suing AT3 Resources Limited for running an advertisement which was not vetted by the advertising panel (APCON) and Meta Platform Inc is joined as a party to the suit for allowing an agency to run an advertisement on their platform that has not been vetted by the government agency.
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In a meeting that I participated in today, this issue was raised, asking as to the way forward for skit makers and content creators who engage in advertising and here is my professional legal opinion/advice as I submitted in the meeting.
After painstakingly going through the extant law ( Act No. 23 of 2022) purportedly requesting skit markers to obtain approvals and licenses from the advertising panel (APCON) before they can engage in an advertisement: there is nowhere this was expressly provided that skit makers, content creators or influencers should obtain approvals from the panel before making a post. In fact, under S. 63 of the act which is the interpretation section, Advertising agency was stated to mean an agent or organization that engages in express advertisement; skit markers, influencers, or content creators were never added as advertising agency nor advertisers.
Secondly, content creators and influencers although engage in the promotion and endorsement of products which can be interpreted to be a form of advertisement, they never engage in express or overt advertising; they have crafted a unique style of making “funny skits/content” while covertly infusing the product or brand they intend to promote and endorse. This, in my professional opinion and to every reasonable person’s opinion cannot be said to be advertising that approval is needed for.
As for the suit between ARCON v. Meta & Anor which has raised this recent panic amongst advertisers and content creators, this suit may have been misunderstood; “ARCON is suing META the parent company of Facebook, Instagram and WhatsApp mainly for allowing their platform to be used engaging in advertising that was never vetted by the panel, the next defendant in the suit is AT3 Resources ltd, a lagos based media agency that engages in outdoor and social media advert and public relation.
This case should totally be distinguished from what content creators and skit makers do hence why they do not need approval from the panel to post their funny skits or content. They are just agents of laughter and one should not be needing approval from the government to spread happiness through laughter.
Finally, I am fully aware that this whole brouhaha of skit makers obtaining approvals from APCON before advertising started off when the DG of ARCON in a press briefing last December charged skit makers and social media content creators to adhere to the Nigeria advertising code of practice but nowhere is it provided in the act that skit makers or content creators should secure approvals. I strongly believe that the DG was greatly misquoted by news blogs.
On that note, I advise that APCON licenses and approvals do not apply to content creators and skit makers because they do not engage in the express form of advertisement.