Justice Yellim Bogoro of the Federal High Court in Lagos has ruled that the N60 billion fine imposed on Facebook Nigeria Operations Limited by the Advertising Regulatory Council of Nigeria (ARCON) was unlawful and cannot stand. The court said ARCON acted beyond its legal powers and also violated the company’s constitutional right to a fair hearing before issuing the penalty.
The judgment was delivered in a case marked FHC/L/CS/2205/2024. Justice Bogoro declared ARCON’s Notice of Violation and Demand for Compliance, dated October 21, 2024, as unconstitutional, illegal, null, and void. The court also stopped the regulator from taking any further action to enforce the notice against Facebook Nigeria.
The dispute began after ARCON accused Facebook Nigeria of displaying advertisements on Facebook and Instagram to Nigerian users without first obtaining approval from the Advertising Standards Panel. According to the regulator, this violated provisions of the Advertising Regulatory Council of Nigeria Act, 2022, and the Nigerian Code of Advertising.
As a result of the alleged violations, ARCON ordered Facebook Nigeria to stop displaying the advertisements and imposed a penalty of N60 billion.
Facebook Nigeria challenged the decision in court through its lawyer, Mofesomo Tayo-Oyetibo (SAN). The company argued that ARCON had no legal authority to determine criminal liability or issue such a huge financial penalty without first giving it the opportunity to defend itself.
The company also maintained that it does not own or operate Facebook or Instagram. It explained that both platforms belong to Meta Platforms Inc., a separate foreign company, and that Facebook Nigeria should not be held responsible for actions linked to the social media platforms.
ARCON, represented by Akinlolu Kehinde (SAN), argued that Facebook Nigeria serves as Meta’s representative in Nigeria and should therefore be held accountable for advertising activities carried out on Facebook and Instagram. The regulator also claimed that its notice was only a compliance directive, giving the company the choice to comply, pay the violation fee, or face prosecution.
However, Justice Bogoro rejected ARCON’s arguments. He ruled that Facebook Nigeria is a separate legal entity from Meta Platforms Inc. and that ARCON failed to provide convincing evidence showing that the Nigerian company owns, controls, or manages Facebook or Instagram.
The judge further stated that simply claiming Facebook Nigeria represents Meta’s interests in Nigeria was not enough to make it legally responsible for the alleged advertising violations.
On the issue of fair hearing, the court found that ARCON breached Section 36 of the Nigerian Constitution by accusing the company of wrongdoing and imposing a massive fine without first allowing it to present its defence. Justice Bogoro also pointed out that Section 57(4) of the ARCON Act requires the regulator to give anyone accused of a violation a fair hearing before imposing any penalty.
The court also noted that the alleged offences were criminal in nature because Section 34 of the ARCON Act classifies unauthorized advertising as an offence. Since the law states that punishment can only be imposed after a conviction by a competent court, ARCON had no legal authority to issue the N60 billion fine through an administrative process.
Based on these findings, the court cancelled the Notice of Violation and Demand for Compliance and ruled that ARCON cannot impose fines for alleged criminal offences under the Act without first obtaining a court conviction. Justice Bogoro also granted a permanent injunction preventing ARCON, its officers, agents, and representatives from enforcing the October 21, 2024 notice against Facebook Nigeria.
