New advertising regulation illegal, detrimental to business –ADVAN President, Uwubanwmen

Recently, there was a court ruling that quashed the power of the Nigerian Broadcasting Commission. The court ruled that the commission, not being a court, did not have the right to impose fines on broadcast stations. Are industry stakeholders thinking of taking to court if dialogue fails?

On the recent court judgment against the NBC, what the judgment said is that imposing fines is the prerogative of the court. The government uses it to collect revenue, but it is the court that imposes these fines. We are on a tripartite system — the legislative, executive and the judiciary. The only arm that can sentence anybody to death is the judiciary. That’s why we have courts and tribunals that can find an accused person guilty.

ARCON recently said it would have to be involved in advertising contracts which advertisers under the aegis of the Advertising Association of Nigeria have kicked against. What is the latest development on this?

With the ARCON pronouncement, we are going to court for interpretation. We want to know if they can do this, because the Nigerian constitution we know is telling us so many things. For example, setting up a panel and giving us a retired judge as head, cannot work because the person cannot do pronouncement again.  The constitution allows me to do legal contract. For ARCON to say it wants to be involved and do my contract for me doesn’t make a sense. Let me tell you why this is happening. For a long time, those in the industry who are on our side have been quiet. So, a certain group of people will sit down and do laws for us and think it will work. What we are saying to them is that we are not against anybody, but we want the law to be interpreted because the law we know based on all we have been doing is contrary to this law.

Some stakeholders have disagreed with ARCON on its decision to ban the use of foreign models by advertisers in the country. The regulator, on its part said the ban would save Nigeria N120bn in capital flight. What’s your take on this?

First of all, how did they arrive at what was spent before? For you to know savings, you need to know the spend. So, who gave them the template for the spend?. The Nigerian consumers are so Nigeria-centric right now. Nigerians now play Nigerian songs. We now watch Nigerian videos. If you say you are a marketer, you cannot be showing them foreign content in this day and age. You will kill your brand by yourself. A few years back, the Head of Advertisers Sectoral Body wrote to APCON (formerly) against this law. The HASG made it clear that it will just make them retaliate against our brands for nothing. Nigeria is already leading Africa. In terms of showbiz, models and all forms of entertainment, it is Nigeria they want to use. We, as brands, have been using Nigerians forever.

In those days, when you go to parties, you will hear Michael Jackson and all those foreign music, but now when you go to parties you don’t hear that anymore. So, as a brand, you can’t go and bring a foreign model, you are just going to kill your brand. This is what we are saying, the research doesn’t support what they are saying. If people are not using foreign models, it is not because they are saving any money. Let them show us the research that they have. Let’s look at it this way. First Bank is a large conglomerate. First Bank is in many countries. I was in Rwanda and Access Bank saved my life. So, if the same Access Bank wants to do advert in Nigeria and circulate to other countries because it saves cost, if you say we should not use other models, the likes of First Bank, Dangote, Access Bank will struggle because everywhere Dangote is, they will apply the same law. You know people like copying laws. The world is built on people doing to you, what you have done to them. So, the law will not even affect the people they think it will affect. It is the conglomerates that will be most affected. Any shoot (advert) that First Bank does here will not be shown in Nigeria alone. They will show it in First Bank Ghana and everywhere else. We need to be careful how we create these laws.

 It is expected that before drafting this law, ARCON would have brought in legal experts who ought to have known how to draft it without creating this level of controversy. Are you saying these experts didn’t do their due diligence?

I met one of the experts who drafted the law in Abuja during last year’s advertising conference. I challenged him on certain things. I didn’t challenge him in the hall. I had a one-on-one with him. Let me tell you what I think happened. The DG said something during that conference. He said the language in the law seemed like it was drafted by someone who is very angry. I was like, so they even know that the language of the law was drafted in a manner to make people very agitated. So, the language of the law sounds like any other thing does not concern them, as if the constitution does not even exist. It quashes my fundamental human right to free transaction that is legal.

We have drafted 50 questions. We are going to send it to them. We have questioned certain things, and we are asking the court to interpret them for us. We believe the interpretation will help everybody. For us, we are very confused because of what we know in-house. Some of these laws are countering what we have known all our lives. We have also known that we can sit down with our agents and do a contract. If somebody is not complying with your contract, there is a stipulated way of enforcing it. You have the right to arbitration. It’s in our contract.

There have also been claims by some stakeholders in the advertising industry that ARCON did not embark on widespread stakeholders’ consultation before drafting the new law. Is this true?

If you want to have a law such as this, what you should do is to have the draft reviewed by all the stakeholders in the industry. They should come and tell us where this draft was reviewed. The draft was meant to be brought to stakeholders for review. Where did they have such consultations?

If you ask stakeholders to review a draft of what is meant to be a law. Do you think what comes out of it can really be considered a law?

Let me tell you why it has to be done like that. We are all interwoven. Let me tell you, a certain sectoral body pulled out all their members from APCON Council (now ARCON) when a decision did not favour them. That will tell you that this matter is not a joke. It is only in our industry that only one regulator regulates the business and the practitioners. APCON had power over the practitioners. When they wanted to go into business conversations, that’s when they changed their name (to ARCON) so they can touch the business of advertising. But, in all other professions, there’s a difference. Why are we the first to have one regulator oversee the business side and the practitioners?

Earlier, you said the new ARCON law seeks to violate your fundamental human right of going into legal contract. Can you expatiate more on this?

In their new law — how to pay, when to pay and how much to pay is determined by them. It’s in their new law that I must pay in 45 days and I must also pay them a percentage. So when I enter into a contract, I’m not just negotiating with the other party. I can just go and tell them — this is what ARCON says you must pay me. This is how fast ARCON says you must pay me. If this happens, what is negotiation in a contract for? Is there any need to negotiate again?

Let me tell you the sad part of this law. There is no aspect of the law that punishes any agency for doing anything to the advertisers. There is a guy who wrote about the dangers of this new law, Suleiman Abdulahi, the guy even aligned us to what was happening in Britain. The question is, why are we not copying other people? We have the right to ask questions. This law was written for us. So we need to have conversations around the law so that from the outset, we can know what is obtainable.

The Punch