Court Restrains ARCON From Enforcing N60bn Fine On Facebook

The Federal High Court in Lagos has granted an interim order restraining the Advertising Regulatory Council of Nigeria (ARCON), formerly known as the Advertising Practitioners Council of Nigeria (APCON), or its agents from demanding N60 billion from Facebook Nigeria Operations Limited for an alleged violation.

Justice Yellim Bogoro made the order on Thursday, December 12, 2024, in suit FHC/L/CS/2205/2024, following a November 29, 2024, motion ex-parte application filed by Facebook through its counsel Mofesomo Tayo-Oyetibo (SAN) of Tayo Oyetibo LP.

The judge, upon reading the affidavit in support of the Motion ex parte sworn to by Folasade Dada, and after hearing Mr. Tayo-Oyetibo with Jessica Adeola-Ajayi, granted the application.

Justice Bogoro held: “I have considered the ex parte application made, the reliefs sought particularly relief number two of the ex parte application, the affidavit in support, the facts deposed thereto in the affidavit. I find merit in the application. I shall grant the reliefs in part. I make this Order.

“It is hereby ordered as follows: That an Interim Order of Injunction is hereby made pending the determination of the Motion on Notice herein filed for interlocutory injunction restraining the Defendant whether by itself or through its officers, agents, servants and any other person acting under its authority from enforcing or further enforcing in any manner whatsoever the notice of violation/demand for compliance dated 21 October 2024 issued by the Defendant to the Applicant. I strongly feel the second relief sought is subsumed in the first relief.

“That this suit is hereby adjourned to the 20th day of February 2025 for hearing of Motion on Notice. Hearing Notice be served on the Defendant.”

Facebook had sought two reliefs.

The first was “An interim order of injunction, pending the determination of the Motion on Notice for interlocutory injunction, restraining the Defendant, whether by itself or through any person acting under its authority from enforcing or further enforcing in any manner whatsoever the Notice of Violation/Demand for Compliance dated 21st October 2024 issued by the Defendant to the Applicant.”

The second relief sought an interim order of injunction restraining ARCON, whether by itself or through its prosecutors or anyone acting under its authority, “from instituting or commencing criminal proceedings in the Advertising Offences Tribunal to prosecute the Applicant, its officers, agents or representatives, with respect to the allegations and/or decisions made by the Defendant and/or subject matter of the Notice of Violation/Demand for Compliance dated 21st October 2024 issued by the Defendant to the Applicant.”

In seeking the reliefs, the Applicant filed 11 grounds for the application.

It stated that ARCON issued it a Notice of Violation/Demand for Compliance dated 21 October 2024 (“ARCON Notice”) making certain allegations and decisions against Facebook, including imposing the N60bn fine.

But Facebook was “challenging the constitutionality of the ARCON Notice based on grounds of denial of fair hearing, its unlawfulness under the Advertising Regulatory Council of Nigeria Act 2022 (“ARCON Act”) and as an ultra vires act of the Defendant.

It continued: “The Defendant threatened that it will enforce the ARCON Notice against the Applicant by criminal prosecution in the Advertising Offences Tribunal (“Tribunal”) if the Applicant does not satisfy its demands.

“The Applicant issued a statutory pre-action notice demanding the Defendant to withdraw the threat of enforcement, yet the Defendant has not done so.

“Order Vill Rule I of the Advertising Offences Tribunal Practice Direction mandates that a hearing in the Tribunal must be completed within 180 days of filing the charge. Section 306 of the Administration of Criminal Justice Act 2015, which applies in the Tribunal, prohibits the grant of an order for a stay of proceedings in a criminal matter.

“The Defendant appoints the prosecutor in the Tribunal, while the Chairman and other members of the Tribunal were appointed on the recommendation of the Defendant.”

Facebook added that “it would be vexatious and oppressive to the Applicant and unconscionable for the Defendant to initiate criminal proceedings against the Applicant based on the allegations and decisions made by the Defendant in the ARCON Notice, while the Applicant’s suit challenging the constitutionality and legality of the ARCON Notice is pending in this Court.”

The firm averred that there was “the urgent need for this Court to retain full control of the subject matter of this suit and protect the Applicant from the Defendant’s vexatious and oppressive conduct.

“It is necessary for the Court to prevent abuse of the judicial process by the Defendant’s proliferation of litigation on the same subject matter.”