In recent months, the Advertising Regulatory Council of Nigeria (ARCON) and the Nigerian government have taken a much more aggressive stance towards the regulation of digital platforms and internet service providers.
This became evident last June when the government banned social media giant Twitter from operating in Nigeria after the platform deleted a tweet by President Muhammadu Buhari that allegedly violated the company’s rules.
While the government lifted the ban seven months later, subject to certain conditions, many have voiced concerns over the government’s censorial instincts.
On his part, Nigeria’s Nobel Prize-winning author Wole Soyinka called the event “a dictatorial spasm”.
Pushing the envelope
The Nigerian government and regulator have been behaving in an increasingly protectionist way.
In August, ARCON announced a widespread crackdown on the use of foreign actors to broadcast adverts in Nigeria, apparently to help the government develop local talents and promote homegrown economic development.
ARCON has since doubled down on this approach. Earlier in October, its Director-General, Olalekan Fadolapo emphasised that advertisers must include a “minimum of 75% cumulative local content of all advertising and marketing communications directed to the Nigerian market” as of January 2023. The regulator claimed that Nigeria loses N120bn ($280mn) annually from adverts being produced outside of the country.
Most recently, ARCON announced it was bringing a legal case against Meta at the Federal High Court in Abuja. ARCON is attempting to sue the social media titan for N30bn ($70 million) over allegedly failing to conduct appropriate vetting on adverts.
The regulator further said Meta’s “continued exposure of unvetted adverts has also led to loss of revenue to the Federal Government”.
Exodus of global media companies?
Some fear that ARCON’s bullish stance could deter global media companies from establishing operations in Nigeria.
Helen Ese Emore, Principal Consultant at Scientia Partners, a consultancy firm in Lagos that advises technology firms, says “not all protectionist policies are helpful” and that “the way the government [has gone] about these policies only end up painting the country in bad light”.
Rotimi Ogunyemi, a Technology Attorney and Chair of the Nigerian Bar Association Section on Business Law, says “protectionist policies in a connected world do little to help any country, not least in the long-run”.
No resources to keep up
In any case, Emore questioned whether the regulator has sufficient resources to regulate global platforms in the way they would like.
“You have Facebook, Instagram, WhatsApp, LinkedIn, TikTok, YouTube, Google, amongst several others. How does the regulator want to manage [the] activities of millions of users?” she wonders.
Ogunyemi echoed similar sentiments, telling The Africa Report that ARCON’s recent moves suggest the regulator is struggling to adapt to a fast-changing and increasingly globalised world.
“Prior to now, digital advertising in Nigeria [was] very lightly regulated, if at all,” Ogunyemi said. “Advances in technology and [the] convergence of information, communication, entertainment, and broadcasting landscapes have reshaped digital advertising into a very complex space.”
“The traditional regulator is not equipped to regulate such a fast-converging space,” he adds.
More business-friendly approach
Despite the challenges, both Emore and Ogunyemi were hopeful that ARCON can adapt to new realities and approach the technology space in a more business-friendly way.
Emore suspected that “a good lawyer can deal with this” and that the regulator is unlikely to win its case against Meta.
According to Emore, ARCON is seeking to apply its protectionist policies retrospectively, something that the law does not allow. The potential loss of its case against Meta could prompt ARCON to re-evaluate its current approach.
You have Facebook, Instagram, WhatsApp, LinkedIn, TikTok … How does the regulator want to manage [the] activities of millions of users?
Ogunyemi was also keen to emphasise that despite at times overreaching, ARCON does often have legitimate concerns. “It’s obvious that the threats digital advertising poses are real. While digital advertising is a life-saver for (small) businesses and the budding entrepreneurial economy in Nigeria, advertising platforms also pose a great risk to the social order,” he says.
“Unregulated political advertising appears to be the regulator’s major concern given its potential to undermine democratic norms and social cohesion.”
Ogunyemi suggested that the regulator should seek a more flexible stance.
It appears that ARCON’s recent moves are, in Ogunyemi’s words, a “wake-up call” for Nigeria as it continues to shift to a highly digitalised world.
In Emore’s opinion, many of the regulator’s problems arise from the fact that it simply was not prepared for “the ubiquitous nature of digital platforms”.
Amended legislation needed
Both Ogunyemi and Emore agree that existing legislation is not sufficient for ARCON to carry out its mandate, which is also not particularly clearly defined. Updated rules are therefore required to bring ARCON into this new age.
Ogunyemi believes dialogue is the key to getting it right. “The regulator needs to do more by way of consultative engagements with stakeholders to empower a healthier regulatory response,” he says.
Should the legal groundwork be more firmly set, this could pave way for healthier and more sustainable growth in Nigeria’s tech ecosystem.
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