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.
Enforcement Organs
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.
CONCLUSION
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.