Introduction
Before the enactment of the Advertising Regulatory Council of Nigeria Act 2022, the applicable law regulating the advertising sector in Nigeria was the Advertising Practitioners (Registration, etc.) Act 1988 (“the APCON Act), which established the Advertising Practitioners Council of Nigeria as the agency responsible for regulating advertising in Nigeria. Instructively, the APCON Act was only applicable to advertising practitioners, and it could not regulate other individuals who were not registered advertising practitioners. In the case of Mic Royal Limited -v- APCON (2018) LPELR-45314 (CA), the Court of Appeal held that the purpose of the APCON Act was obviously to regulate the activities of any person who is engaged in the advertisement profession and no more.
Perhaps, due to the limited scope of the APCON Act, the National Assembly enacted the Advertising Regulatory Council of Nigeria Act, 2022 (“the ARCON Act”), which repealed the APCON Act. Unlike the APCON Act, which was limited in scope, the ARCON Act has an extensive scope, as it was enacted to establish a council for Advertising, Advertisements and Marketing Communications as the apex regulatory authority for the Nigerian Advertising Industry, make provisions for the regulation and control of advertising, ensure the protection of the general public and consumers, promote local content and entrench the best international practices and for related matters.
Since the enactment of the ARCON Act in 2022, there has been an ongoing debate as to whether ARCON has the statutory powers to regulate the social media posts of both individuals and organisations, which amount to advertising or whether the ARCON Act should be limited to only advertising practitioners like its precursor, the APCON Act.
In the recent decision of Digi Bay Limited (Trading under the name and style of Betway Nigeria) & 2 Others -v- Attorney General of the Federation & Anor (Unreported Suit No. FHC/L/CS/1262/2024), the Lagos Division of the Federal High Court, in its judgment, which was delivered on 29 April 2025, had the opportunity to expound the powers of the ARCON regarding social media posts under the ARCON Act.
SUMMARY OF THE FACTS IN DIGI BAY LIMITED & 2 OTHERS -V- ATTORNEY GENERAL OF THE FEDERATION & ANOR
The 1st Plaintiff was a betting company, and it made some social media posts on Instagram advertising some of its products on 22 March 2024. During its routine enforcement drive on social media, the 2nd Defendant, ARCON, came across the 1st Plaintiff’s social media posts, and it issued a Notice of Violation dated 27 March 2024, requesting the 1st Plaintiff to pay a fine of N1,000,000.00 (One million naira) per post for failing to secure the prior approval of the Standards Panel for the social media posts in accordance with the ARCON Act.
Being dissatisfied with the Notice of Violation, the Plaintiffs commenced a lawsuit against the Defendants by filing an originating summons dated 12 July 2024, requesting an order of the Federal High Court declaring the provisions of the ARCON Act as unconstitutional for seeking to regulate the private posts or social media posts of the Plaintiffs. They also sought an order nullifying the fine imposed on the 1st Plaintiff by ARCON.
The primary provision of the ARCON Act, which the Plaintiffs were challenging, was section 54, which provides as follows:
“Any person including sponsor or beneficiary of an advertisement, body corporate, organisation or agency which creates or places for publication or exposure of an advertisement in any medium directed at or targeting the Nigerian market without the prior approval of Standards Panel commits an offence and is liable to such fine as stated in the Nigerian Code of Advertising Practice.”
The Plaintiffs also challenged the provisions of sections 2 (2) (a) and (b) of the ARCON Act, which provide as follows:
“(2) The provisions of this Act applies to-
- Individual, organisation, 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
- Any person who sponsors or takes benefit of an advertising, advertisement or marketing communications services within the provisions of this Act.”
The Plaintiffs’ contention in Court was that the National Assembly lacks the power to make any law regulating social media posts or advertisements because these items were neither listed on the exclusive legislative list nor the concurrent legislative list enshrined in the 1999 Constitution. The Plaintiffs also argued that the interpretation of the ARCON Act to include the regulation of the private social media posts of private individuals was unconstitutional, and it amounts to a loose, erroneous and impractical interpretation of the relevant sections of the Act.
On its part, ARCON argued that while it was correct that advertisement was not listed under the exclusive and legislative lists enshrined in the 1999 Constitution, the National Assembly had the powers to legislate on advertisement because advertisement and marketing communications were incidental to, connected with, or associated with Trade and Commerce under item 62 of the exclusive legislative list.
After reviewing the parties’ arguments, the Court agreed with ARCON’s position that the National Assembly had the power to legislate on advertising because advertising and marketing communications were incidental to Trade and Commerce under item 62 of the exclusive legislative list. The Court held as follows at page 44 of the judgment:
“I hold the view that advertisements and marketing communications are incidental to trade and commerce because people advertise their goods and services for the purpose of trade and commerce. Furthermore, the long title of the Act reveals that the Act was enacted to establish a council for Advertising, Advertisements and Marketing Communications as the apex regulatory Advertising Authority for the Nigerian Advertising Industry.”
In addition to its pronouncement above, the Federal High Court also relied on the decision in Yabatech v. M.C.d Ltd (2014) 3 NWLR (Pt. 1395) 616, where the Court of Appeal held that based on the powers derived from section 4 of the 1999 Constitution, items 11, 63 and 68 in the exclusive legislative list in the constitution, the National Assembly had the powers to prohibit the erection of bill boards and other forms of advertising within the vicinity of the Federal Highway. Therefore, the Federal High Court held that if the National Assembly could legislate on advertising on the highways, then it had the power to legislate generally on advertising.
However, the Federal High Court agreed with the Plaintiffs’ contention that ARCON lacked the power to impose a fine on it for breaching the provisions of the ARCON Act because an award of a fine was a judicial act, which could only be imposed by a competent court or a Tribunal upon conviction. Accordingly, the Court declared the fine as unconstitutional and void.
Finally, the Federal High Court held that ARCON had the power to regulate social media posts because it had a duty to protect Nigerian citizens from unregulated and potentially dangerous commercial messaging. The Court explained this position at page 57 of its judgment as follows:
“Contrary to the argument and claim of the plaintiffs, I do not agree that ARCON is infringing on freedom of expression of the plaintiffs. Rather, I feel it is protecting Nigerian citizens from the unregulated, potentially dangerous commercial messaging. Section 45 of the Constitution validates this restriction as reasonably justifiable in a democratic society. Betting companies are not above the law, and Instagram is not a lawless space. Every promotional message directed at the Nigerian public, regardless of the medium falls within ARCON’s legitimate regulatory reach and mandate within the scope and interpretation of the ARCON Act of 2022.”
The Difference Between a Private Social Media Post and a Public Social Media Post
In its judgment, the Court suggested that the ARCON Act might not apply to a private social media post on Instagram because private posts were only meant to be seen by a person’s approved followers. However, the Court stated that the ARCON Act would apply to public posts on Instagram because anyone could see a public post from an account even if they weren’t following the account on Instagram. This was how the Court described the difference between a private and public social media post at pages 48-49 of its judgment:
“It is common knowledge that anyone can view a person’s profile and posts on Instagram. I quite agree that a person or an entity can make his or its posts private so that only followers approved can view or see them. This will mean that if the posts are set to private, only the person’s approved followers will be allowed to see them on their hashtag or location pages. The plaintiffs have however failed to demonstrate that their posts as revealed in their exhibits DBL and DBL1 are private posts. One thing that should not be confused or mixed up is that the fact that a person/entity is making a post or publication from his private Instagram account does not make such posts or publication private. It will only be private if the posts are set to private when only followers approved to see them could see them and this will be a matter of evidence which the plaintiffs have failed to demonstrate before the court. Based on the evidence before the court, I am of the view that the fact that the 2nd Defendant was able to view the posts and publications made by the 1st Plaintiff on its Instagram account as revealed in the notice of violation issued by the 2nd Defendant in exhibit DBL1 means that the said posts and publication are not set to private as wrongly contended by the Plaintiffs. Otherwise, the 2nd Defendant would not have been able to see or view the said posts.”
FOOD FOR THOUGHT ON THE FEDERAL HIGH COURT’S DECISION IN DIGI BAY LIMITED & 2 OTHERS -V- ATTORNEY GENERAL OF THE FEDERATION & ANOR (SUPRA)
Although the Federal High Court’s judgment has fully clarified the extent of the powers of ARCON, there are several unresolved questions, which would arise from the judgment. Some of these questions are:
- Is the objective of the ARCON Act really to ensure the protection of the general public and consumers, promote local content and entrench the best international practices, or to merely serve as an avenue for ARCON to generate revenue from companies and individuals who use social media to advertise their businesses?
- Would the strict enforcement of section 54 of the ARCON Act not stifle the growth of many small businesses, which rely on social media to make income and may not have the resources required to seek the approval of the Standards Panel of ARCON before publishing their social media posts?
- Would ARCON also rely on section 54 of the ARCON Act to regulate WhatsApp Channels, WhatsApp Status Updates, email marketing, WhatsApp Broadcasts, cold phone calls and text message marketing? Is there any limit to the exercise of ARCON’s powers under the Act?
- Is there any other jurisdiction in the world with an expansive statutory provision such as section 54 of the ARCON Act?
- Would the Federal High Court’s judgment on the broad powers of ARCON have been different if the Plaintiff were a small-scale furniture maker and not a betting company?
- Does the Standards Panel of ARCON have the capacity and resources to review and grant approval to every individual and company seeking to publish posts about their business on social media?
- Are the provisions of sections 54 and sections 2 (2) (a) and (b) of the ARCON Act logical and business-friendly?
TAKEAWAYS FROM THE COURT OF THE FEDERAL HIGH COURT’S DECISION IN DIGI BAY LIMITED & 2 OTHERS -V- ATTORNEY GENERAL OF THE FEDERATION & ANOR (SUPRA)
Although the judgment in this case confirms that ARCON has the power to regulate advertising and marketing on social media, the main takeaway deducible from the judgment is that ARCON lacks the power to issue a Notice of Violation imposing fines on individuals and corporate entities who failed to secure the prior approval of the Standards Panel for their social media postings without first securing a conviction against them at the Advertising Offences Tribunal.
While the powers granted to ARCON by the ARCON Act seem very wide, it is hoped that the National Assembly will take urgent steps to amend the Act in a manner that would balance ARCON’s powers to protect Nigerians from false and fraudulent advertorials with the need to make it easier for small businesses and individuals to post freely about their products and services on social media without worrying about being charged to the Advertising Offences Tribunal by ARCON due to their failure to secure the approval of the Standards Panel.
Faruq Abbas, MCIArb (UK)
Managing Partner
It should be noted that this article is for general information only. It is not offered as advice on any particular matter, whether legal, procedural or otherwise. If you have any questions about this article, please contact the author at foa@abdu-salaamabbasandco.com.