Court Restrains ARCON from Demanding N60bn Fine from Facebook

Wale Igbintade

Justice Yellim Bogoro of the Federal High Court in Lagos has granted an interim injunction, restraining the Advertising Regulatory Council of Nigeria (ARCON) from enforcing a N60 billion fine against Facebook Nigeria for an alleged violation.

The ruling, followed a motion filed by Facebook through its counsel, Mofesomo Tayo-Oyetibo (SAN), challenging the constitutionality of ARCON’s notice of violation.

After reviewing the affidavit in support of the ex parte motion sworn by Folasade Dada, and hearing arguments from Mr. Tayo-Oyetibo, Justice Bogoro granted the application.

The judge stated: “I have considered the ex parte application, the reliefs sought, particularly relief number two, the affidavit in support, and the facts deposed therein. I find merit in the application and shall grant the reliefs in part. I make this order.

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

“This suit is adjourned to February 20, 2025, for the hearing of the Motion on Notice. Hearing notice shall be served on the Defendant.”

Facebook had sought an interim injunction, requesting that ARCON be restrained from enforcing the Notice of Violation/Demand for Compliance dated October 21, 2024, and from instituting criminal proceedings in the Advertising Offences Tribunal against Facebook, its officers, agents, or representatives, regarding the allegations and decisions outlined in the ARCON Notice.

In support of its application, Facebook cited 11 grounds for relief.

The company argued that ARCON had issued a Notice of Violation/Demand for Compliance, which included the imposition of a N60 billion fine.

Facebook challenged the constitutionality of the notice, asserting that it violated principles of fair hearing, was unlawful under the Advertising Regulatory Council of Nigeria Act 2022 (“ARCON Act”), and constituted an ultra vires act by ARCON.

Facebook further contended that ARCON had threatened to enforce the notice through criminal prosecution in the Advertising Offences Tribunal if its demands were not met.

Despite Facebook’s statutory pre-action notice requesting the withdrawal of this threat, ARCON had not responded.

Facebook pointed out that under Order Vill Rule I of the Advertising Offences Tribunal Practice Direction, a hearing in the Tribunal must be completed within 180 days of filing the charge. Additionally, Section 306 of the Administration of Criminal Justice Act 2015, which applies in the Tribunal, prohibits the granting of a stay of proceedings in a criminal matter.

The company also noted that ARCON appoints the prosecutor in the Tribunal, while the Chairman and other members are appointed on ARCON’s recommendation.

Facebook argued that it would be oppressive, vexatious, and unconscionable for ARCON to initiate criminal proceedings based on the allegations and decisions made in the ARCON Notice, while the company’s suit challenging the notice’s constitutionality and legality is still pending.

Facebook emphasized the urgent need for the Court to retain full control over the matter and protect the Applicant from what it described as ARCON’s vexatious and oppressive conduct, preventing the abuse of the judicial process through the proliferation of litigation on the same issue.

The case is adjourned for further hearing on February 20, 2025.