The Development of the Advertising Industry and Regulatory System in Nigeria and West Africa
APPROACHES TO ADVERTISING REGULATION
There are basically two approaches to advertising regulation around the world, namely, self-regulation and statutory regulation. Many of the developed countries practise predominantly, the self-regulatory approach, a system that relies on independent and voluntary trade and professional associations. These are associations of practitioners who undertake to regulate themselves through codes of conduct to which they voluntarily subscribe. They choose and commit themselves to behave responsibly because they appreciate that it is in their interest, ultimately, to do so. They also realize that in so doing, they make it unnecessary for government to intervene in the practice by enacting legislation that often tend to be high handed and inimical to business.
Typically, the code of conduct, which is the bedrock of advertising self-regulation, seeks to achieve one result, namely, ‘a high standard of consumer protection based on the premises that advertising should be legal, decent, honest and truthful’ (European Advertising Standards Alliance Summit, June 25, 2004).
Incidentally, some West African Countries, such as the republic of Ghana practice self-regulatory functions of Advertising through the Advertisers Association of Ghana very similar to what is obtainable in European Advertising Standards Alliance.
The alternative approach to advertising regulation is statutory regulation. It relies on legislations and regulations enacted by the government and its agencies which are established to enforce the legislations and regulations.
Though the best standard of consumer protection may never be achieved through legislation, it provides the essential legal backup to make self-regulation effective, and particularly to deal with those who have chosen the path of lawlessness and irresponsible conduct.
Many ECOWAS countries, including Nigeria, adopt a hybrid of the self-regulatory and statutory mechanisms.
Prior to the establishment of the Advertising Practitioners Council of Nigeria (APCON) by Act Number 55 of 1988, the Association of Advertising Practitioners in Nigeria (AAPN now AAAN) had assumed the responsibility of regulating advertising practice in Nigeria by drawing up and enforcing among its members, a code of conduct for the practice of advertising. Being a voluntary association without a statutory authority, the AAPN was not in a position to enforce its code on those who do not belong to the association or who have not subscribed to the code.
There were, at the time, other organizations, individuals and associations whose interests in advertising were in conflict with those of the AAPN, who also sought, under various guises, to regulate or resist the regulation of the practice of advertising in the country. The emergence of APCON was, to a large extent, meant to harmonize all possible conflicts in the regulation of advertising in Nigeria.
Today, all of these organizations and individuals are organized into various self-regulatory associations for the purpose of maintaining professional cohesion and discipline. They all come under the regulatory umbrella of APCON in which council they have representatives.
THE FRAMEWORK FOR ADVERTISING REGULATION IN NIGERIA
The framework for the regulation of advertising in Nigeria is built on the Advertising Practitioners (Registration, etc) Act Number 55 of 1988 and the amendment Act Number 93 of 1992, which established the Advertising Practitioners Council of Nigeria (APCON) and its statutory organ, the Advertising Standards Panel. These laws give APCON the power to regulate advertising in Nigeria in all its aspects and ramifications while a subsequent amendment of the Acts provides for the collaboration with the Federal Ministry of Health, on the regulation of advertisements for food, drugs and cosmetics.
The laws provide for the representation of the key stakeholders in advertising in the governing council of APCON, namely, advertising agencies (AAAN & OAAN) advertisers (ADVAN), broadcast media organizations (BON), print media organizations (NPAN), the federal ministry of information and tertiary institutions of learning offering advertising related courses. The policies and procedures for the regulation of advertising in Nigeria are therefore consensus decisions of the advertising stakeholders operating through the APCON governing council and guided by the enabling laws.
The regulatory policies and procedures rest on three platforms, namely:
i. Registration of practitioners as prerequisite for engagement in advertising practice
ii. Formulation and enforcement of a code of advertising practice which defines the principles on which good advertising is based
iii. Operations of organ for the enforcement of advertising standards and professional discipline.
Registration (Licensing) of Advertising Practitioners
Regulation of advertising practice begins with the registration of advertising practitioners. This is meant to ensure that only those who have acquired the requisite knowledge and skill and are therefore in a position to conduct themselves professionally, are licensed to practice. The formal induction of the registered practitioners, which is the final stage of the registration process, is intended to make the practitioners commit themselves to and be bound by the code of advertising practice through the swearing of the oath of practice. It also makes them subject to the disciplinary procedures of the council. Nobody who is not registered by APCON as an advertising practitioner is permitted by law to practise advertising in Nigeria in any form. The law provides for a fine or jail term or both fine and jail term for any person who engages in advertising for gain, without being registered by APCON.
A Register of Advertising Practitioners which contains the names and particulars of duly registered and bonafide practitioners is published by APCON from time to time, for the guidance of those wishing to engage the services of advertising practitioners. Copies of the Register can be obtained at any APCON office.
The Code of Advertising Practice
On the other hand, the Code of Advertising Practice specifies the rules and regulations which guide the production and exposure of advertisements in Nigeria and the professional conduct of practitioners. Underlying the detailed regulations on general and specific forms of advertisements is the requirement for advertisements to be truthful and honest, decent, legal, fair in competition, respectful of the culture and social morality of the environment where they are exposed and do not mislead the consumers in making their choices of products and services or endanger their wellbeing.
Advertising Practitioners are expected to familiarize themselves with the provisions of the Code and ensure that every advertisement conceived, produced or exposed by them comply with the applicable provisions of the Code. Copies of the Code of Advertising Practice in Nigeria are given to all practitioners during their induction. They are also available for purchase at all APCON offices.
Act number 93 of 1992 provides for the establishment of the Advertising Standards Panel (ASP) which is charged with the responsibility to vet advertisements (in order to ensure that they fulfill the provisions of the Code of Advertising Practice) and give approval for their exposure in the public media. By the provisions of this Act, no advertisement which did not receive the approval of the ASP is authorized to be exposed in Nigeria.
APCON will sanction any advertisements for all categories of products and services except obituaries and public service announcements which are found to be in breach of the Code of Advertising Practice, or exposed in any media without a certificate of approval issued by the ASP.
The Registrar of APCON, together with his staff, has the responsibility to monitor and identify advertisements which are exposed without the approval of the ASP and enforce the provisions of the law as they affect such (illegal) advertisements. Such enforcement will involve the removal or stoppage or causing to be removed or stopped, such illegal advertisements and the payment of appropriate fine by the person involved. The Council may also initiate disciplinary measures at the Advertising Practitioners Investigating Panel (APIP) and the Advertising Practitioners Disciplinary Committee (APDC) against the errant advertising practitioner, or a legal action (criminal prosecution) if the person involved in the exposure of the advertisement is not a registered advertising practitioner. The APDC or the High Court, as the case may be, will determine the extent of culpability of the errant or illegal practitioner and impose appropriate penalties. The APDC may impose fines, reprimand the practitioner, suspend him from practice or withdraw his registration while the court may sentence one who is guilty of illegal practice to jail term or fine or both jail and fine.
Both approaches have worked very well for West African Countries, although the statutory related function being practiced in Nigeria is a paradigm shift from commonly practiced self-regulation. Some African countries are seriously considering importing the statutory regulatory approach from Nigeria because of its dispassionate modus operandi in the advertising industry.