Presidential Aide’s defence of Facebook judgment sparks debate over role in ARCON dispute

By Tunde Oso

A public commentary by the Senior Special Assistant to the President on Digital Communications, Engagement and New Media Strategy, O’tega Ogra, defending a recent Federal High Court judgment involving Facebook Nigeria and the Advertising Regulatory Council of Nigeria (ARCON), has drawn criticism from marketing communications expert and public affairs commentator, Ewa Izuchukwu.

In a statement sent to Vanguard, Izuchukwu questioned Ogra’s decision to publicly defend the judgment, arguing that the intervention could create the perception that the Presidency is taking sides in a legal dispute involving a federal regulatory agency and Meta Platforms, the parent company of Facebook. The controversy follows Justice Bogoro’s ruling setting aside ARCON’s ₦60 billion enforcement notice against Facebook Nigeria. In his response to earlier criticism of the judgment, Ogra argued that the decision represented a victory for the rule of law rather than a setback for consumer protection, maintaining that ARCON failed to establish, with admissible evidence, the legal relationship between Facebook Nigeria and Meta Platforms.

However, Izuchukwu argued that the presidential aide’s intervention raises questions about the distinction between his official role and his position as Vice President of the Association of Advertisers in Nigeria (ADVAN), as well as his membership of the World Federation of Advertisers.

According to him, while Ogra is entitled to express his views, his public defence of a judgment favouring Meta could be interpreted as the Presidency supporting the interests of a multinational technology company over those of a federal regulatory agency.

Izuchukwu also noted that although ADVAN has maintained disagreements with ARCON over advertising sector reforms, its leadership has been relatively restrained in commenting publicly on the latest court decision, while Ogra has emerged as one of its most vocal defenders.

On the legal issues, Izuchukwu argued that although the court held ARCON failed to prove Facebook Nigeria’s legal relationship with Meta, the regulator had previously sought to establish that relationship through a separate suit filed against Meta Platforms Incorporated in the United States after obtaining leave from the Federal High Court in Abuja in March 2023.

He contended that the evidentiary requirements highlighted in the judgment could make it difficult for regulators and individual consumers to pursue multinational technology companies through the courts.
Responding to Ogra’s position that consumer protection falls primarily under the Federal Competition and Consumer Protection Commission (FCCPC), Izuchukwu argued that several sector-specific regulators, including the National Agency for Food and Drug Administration and Control (NAFDAC), the Central Bank of Nigeria (CBN), the Securities and Exchange Commission (SEC), the Nigerian Communications Commission (NCC), and the National Drug Law Enforcement Agency (NDLEA), routinely exercise consumer protection powers within their respective statutory mandates.

He further maintained that Nigerian courts have, in other cases, recognised Meta’s responsibility for activities on its platforms without requiring extensive proof of the company’s corporate structure. He cited the Lagos High Court judgment in Femi Falana, SAN v. Meta Platforms Inc., as well as the Competition and Consumer Protection Tribunal’s decision imposing a $220 million penalty against Meta Platforms Incorporated and WhatsApp LLC.

Izuchukwu also referenced legal decisions in Kenya, Australia and Ireland, arguing that courts and regulators in those jurisdictions have held Meta accountable despite arguments based on corporate separateness.

The commentator concluded that while Ogra has the right to express his personal views, presidential aides should exercise caution in commenting on disputes involving federal government agencies to avoid creating the impression that the Presidency has adopted a position in ongoing regulatory or legal matters.

The Federal Government, ARCON, Meta Platforms and ADVAN have not issued any joint statement regarding the exchange of opinions. Ogra’s article maintained that the judgment reinforces due process and institutional discipline, while Izuchukwu insists that the broader concern remains the perception created by the intervention of a senior presidential aide in a dispute involving a federal regulator.

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