The Director-General of the Advertising Regulatory Council of Nigeria, Olalekan Fadolapo, speaks on the controversies surrounding the new ARCON Law, amongst other issues, in this interview with EDIDIONG IKPOTO
Some stakeholders have said that some of the provisions of the new ARCON law are in violation of the Nigerian constitution. How do you respond to this?
My question to them is: which section of the Constitution? It is not enough to say that the law is in breach of the Constitution. You should be able to specifically state which part of it. The spirit and letter of the Constitution are equity, fairness, and justice. They should be able to come out and state the specific provision of the Constitution that is being breached. Then, we will reply to them. When you say something is unconstitutional, how do you want to address it? We want them to come out with specifics. Then, we will reply to them and explain better.
A key observation made about the new law is that it infringes on an advertiser’s right to enter into a legal contract. What is your reaction to this?
There has not been any time ARCON has said it wants to be part of the table when discussions on how to pay, what to pay, and when to pay are done. What ARCON is saying is that equity and fairness should prevail. Should we, as a government agency, allow them to ruin the industry? Look at all the markets around us. Check out what happens in other markets. They pay within 45 days. These same people who go into other markets and pay as they are due will come to Nigeria and tell media houses that they cannot pay them until after 120 days, and they are telling ARCON to stay away and let them continue doing this.
The essence of a regulator is to ensure that there is fairness and equity for all stakeholders concerned. What did we say? If you enjoy the services of a media house, pay them. If you want to advertise with Facebook, CNN, or foreign media, you will have to pre-pay them, but if you want to advertise with a media outlet in Nigeria, you will tell them to come back after 120 days. We said no, and they said we were intruding into their contracts. Do they want to kill the media industry, knowing well that this industry thrives on advertising? What is the essence of a government regulatory agency if we should fold our arms? What is unconstitutional about telling them to pay for the services they are enjoying? They should come and tell us where these things they are doing are practised outside Nigeria.
These same multinationals that are here will go to South Africa and comply. They will go to Kenya and other markets and comply, but they will come to Nigeria and say no. Should we just fold our arms?
Some stakeholders have raised the issue of ARCON being a regulator of practitioners and the business side of advertising. What’s your reaction to this?
They are wrong. Even when we were operating under the platform of APCON, we were regulating both the practitioners and the business side of advertising. Before we moved from APCON to ARCON, we had been issuing licenses to corporate organisations that advertise for business purposes. The industry’s stakeholders have been part of the conversation and engagement. There has been a code of advertising.
We are all aware that one of the government’s current focus is to reduce the cost of governance. Reducing the cost of governance means eliminating corporate organisations with overlap functions. The Medical Council of Nigeria will give you a license to practice as a medical doctor. When you set up your firm, you will still get an operating license from them. If you are a chartered accountant, ICAN will give you a license. If you set up an audit firm, you will still go to ICAN to collect your license. The government is looking at the possibility of even merging some sectors.
There has also been criticism against ARCON for banning the use of foreign models in the Nigerian advertising scene. Do you think the pros of this decision outweigh the cons?
One of the functions of the government is to ensure economic development. Let me state some scenarios for you. We have over 200 million Nigerians today. Are you saying that if you want to advertise to the 200 million Nigerians, you can’t find one person who is worthy of communicating with them? We have a situation where over N120bn is taken out of the economy every year. If you want to produce an advert, sometimes it can cost a lot of money. So, you take this into another economy and come back to Nigeria with a flash drive, expecting that Nigerians will buy the product without getting any benefit. If you are speaking to Nigerians, you cannot go and get a foreigner to pretend to speak Hausa to us. The Federal Government is focused on developing local talents and improving local content.
So, the intent is not to kill foreign agencies. This happens in other markets. What we are saying is that Nigeria should also be made an advertising hub. They are taking advantage of our market, but they don’t want us to take advantage of advertising. As a government agency, should we just fold our arms and do nothing? So, for everything they are doing, they should make sure they have 75 per cent local content. That is all we are saying. You can imagine the number of adverts shot outside Nigeria and then exposed to the Nigerian market. Nigeria is supposed to be the biggest economy in Africa, population- and GDP-wise.
But the Advertisers Association of Nigeria has said that many of the country’s advertisements already use local talent. Hence, there was no need for the ban. They also argued that the ban could affect Nigerian multinationals with branches outside the country. What do you have to say about ADVAN’s claim?
We have brands that are only based in Nigeria, but when they want to shoot their adverts, they run out of the country. They shoot those commercials outside and then bring them back here. They come back with a flash drive. What makes it difficult for people who want to market to Nigeria to use a Nigerian model? Must we use foreigners? We want to create a market for ourselves. We agree that there is globalisation, but inside globalisation, there should be localisation.
There have been widespread claims by some stakeholders, particularly ADVAN, that they were not well consulted during the drafting of the new ARCON law. Why was proper consultation not done?
There are two levels of consultation. There is legislation that we do in our own office, which is a sub-law. What the National Assembly does is the enabling Act. When we wanted to do the ISOP, we set up a committee of all the sectoral groups, including ADVAN. The committee met several times and concluded its report. They brought their report to us; we reviewed it and sent it out.
The director of legal services of the ministry (of information), made some alterations to the report. After a series of meetings, we came back and made a pronouncement. Their claim is that they made submissions that were not captured. Other times, they have said they were not engaged.
There was no time that we had an industry pronouncement that ADVAN was not part of it. We had a code review meeting, and they were part of that meeting. So, at what point did we not involve them? They were part of the code review and were also part of the ISOP committee. This law was passed by the National Assembly, and they (the National Assembly) called for a public hearing and everybody was there. We all attended the public hearing. So, what are we going to do again?
Whatever you see us do now is a sub-law emanating from all these things. Why would you say a pronouncement is illegal because it does not favour your sector? The only reason a media owner invests in media is to make money. They have staff that they are paying. If you are weak, it is the government’s job to lift you towards equality with your other partners. It cannot be a winner takes all kind of thing. It should not be a case of he who pays the piper calls the tune. Is this what happens in other markets? The answer is no.
ADVAN has said it would go to court to challenge the provisions of the new advertising law. Why should the court rule in favour of ARCON?
We are here as a government representative and this is a government policy aimed at developing the industry. This was done in line with the Constitution. That is why the court should rule in our favour.
