By Ewa Izuchukwu

It was barely weeks after my honest review that raised questions about Justice Bogoro’s judgment setting aside ARCON’s ₦60 billion notice against Facebook Nigeria, when I got a rejoinder from a surprising and an unexpected source.

Also read: Facebook Nigeria vs ARCON’s judgment: Not about fine but consumer protection at risk of vulnerability

It’s not from Facebook Nigeria, not from Meta’s regional or global policy office, but from our own O’tega Ogra, the Senior Special Assistant to the President on Digital Communications, Engagement and New Media Strategy. His piece, “The Facebook Nigeria Judgment Is Not a Defeat for Consumers. It Is a Victory for the Rule of Law,” summarily argues that the ruling strengthens institutional discipline rather than weaken consumer protection.

Ordinarily, public debate is healthy. Counter-arguments strengthen democratic discourse. But before engaging the substance of Ogra’s arguments, there is an important question that deserve serious considerations, answers: why has a presidential aide become the most visible public defender of a judgment obtained by Meta when the company itself has chosen silence?

Ogra’s writer profile at the end of the rejoinder discloses that he is also Vice President of the Association of Advertisers in Nigeria (ADVAN) and a member of the governing council of the World Federation of Advertisers.

Those are legitimate affiliations. But again, is he speaking as the President’s communications adviser? As an ADVAN executive? Or simply as a private citizen exercising his right to free expression?

The distinction matters because each role carries different responsibilities. When a senior presidential spokesman publicly champions a position that substantially aligns with the interests of a multinational technology company in litigation against a regulatory agency, perceptions matter as much as intentions.

Whatever he intended, the impression created is that the Presidency through its Ogra its spokesman has entered a dispute against a federal government agency. That is an impression no presidential aide should willingly create.

Interestingly, while ADVAN has maintained its longstanding disagreements with ARCON over ongoing advertising industry reforms, its President, Osamede Uwubanmwen, and its Board of Trustees Chairman, Aare Fatai Odeshile have appeared to be relatively restrained in publicly prosecuting this latest chapter of that disagreement. Instead, Ogra has emerged as the new ADVAN spokesman on industry matters.

Whether by design or circumstance, he now appears to be carrying the public argument that others within the association have largely avoided. That should concern him.

A presidential spokesman should be careful not to blur the distinction between public office and negative industry issues, particularly on matters where government itself has a direct stake through one of its regulatory agency.

The Office of the President should not be perceived as attacking a regulatory agency in the media or championing foreign interests ahead of national and consumer interests.

Is this really something to celebrate?

Setting personalities and motives aside and examining Ogra’s main claim, the court did not shield Meta from the law, only that ARCON failed to prove Facebook Nigeria’s relationship to Meta with admissible evidence rather than commercial assumption. But look at what proving that relationship “properly” actually requires in practice.

In the earlier related Abuja suit FHC/ABJ/CS/1701/2022, filed in September 2022, ARCON had gone the route Ogra says the law demands. It sued Meta Platforms Incorporated directly, and on 30 March 2023 the court granted leave to issue and serve the originating summons on Meta in the United States!

If that is what “doing it properly” looks like, then the rule of law Ogra is celebrating is one that only a well-resourced regulator, or a well-resourced litigant, can actually afford to invoke.

An ordinary Nigerian consumer deceived through advertising on Facebook cannot realistically litigate against Meta in California or Delaware. So while lawyers may applaud procedural purity, consumers are left asking a simpler question: who protects us?

Consumer protection is not exclusive to one regulator

It is disappointing that as a senior presidential aide, Ogra does not know that all government agencies have overlapping functions and all government regulatory agencies have consumer protection as their primary mandate, and that is why he would argue that ARCON is not Nigeria’s consumer protection regulator and that this responsibility belongs to the Federal Competition and Consumer Protection Commission (FCCPC).

Government agencies routinely enforce laws within their respective sectors where consumer welfare is implicated. NAFDAC prosecutes misleading advertisements relating to regulated products.

The Central Bank intervenes where financial promotions breach banking regulations. The Securities and Exchange Commission acts against unlawful investment promotions.

The Nigerian Communications Commission protects telecommunications subscribers. None of these agencies declines responsibility simply because the FCCPC also has consumer protection powers.

In fact, quite recently, the National Drug Law Enforcement Agency (NDLEA) recently secured the conviction of a social media content creator for promoting cannabis online.

The court sentenced him to seven years’ imprisonment after finding him guilty under the NDLEA Act for using social media to advertise cannabis products.

The NDLEA did not conclude that because the offending conduct involved advertising, it should wait for ARCON to act. Nor did it argue that advertising regulation fell exclusively within another regulator’s jurisdiction.

It acted because the offence touched directly on its statutory mandate. That is how sectoral regulation works. Government agencies exercise powers within their enabling laws, even where those powers intersect with advertising, consumer welfare or public safety.

The evidentiary bar Ogra defends is not the one Nigerian courts actually apply

Ogra insists that “commercial reality and legal proof are not always the same thing,” and that courts cannot repair a regulator’s evidentiary gaps. That would be a stronger argument if our courts had, in fact, been applying that standard consistently. They have not.

In January, a Lagos High Court in Femi Falana, SAN v. Meta Platforms Inc. held Meta liable as a joint data controller for content on Facebook without requiring Falana to first construct an elaborate paper trail proving Meta’s ownership and control of the platform; the relationship was treated as established fact, because it plainly is.

The Competition and Consumer Protection Tribunal reached a $220 million judgment against “Meta Platforms Incorporated (Facebook) and WhatsApp LLC” jointly on the same basis.

Our law also already possesses a doctrine built for exactly this situation, which is piercing the corporate veil, applied by the Supreme Court in Marina Nominees Ltd v. Federal Board of Inland Revenue to look behind a company shown to be acting as another’s agent, and invoked whenever, per Oyebanji v. State, a corporate form is used to dupe or evade.

None of these courts demanded that a claimant first litigate Meta’s corporate structure from scratch. Only Justice Bogoro’s court did. If Otegra’s “rule of law” means anything, it should mean consistency… the same platform, the same country, should not be a proven data controller in one courtroom and a legal stranger to its own product in another.

As referenced in my earlier piece, Nigeria is not the first place Meta has reached for corporate separateness as a shield, and Ogra’s “burden of proof” framing collapses when set against how other courts have treated the identical argument.

In Kenya, Meta spent years insisting it could not be held responsible for Facebook content moderators because they were technically employed by an outsourcing contractor, Sama; Kenya’s employment court rejected that, and the Court of Appeal upheld the rejection, holding that Meta was the real employer because the moderators did Meta’s work under Meta’s control.

In Australia, Facebook Inc argued in litigation brought by the country’s privacy regulator that only its Irish affiliate, not Facebook Inc itself, conducted business in Australia; the Full Federal Court rejected that, and separately refused Facebook Inc’s own attempt to escape service of the very kind of cross-border process Ogra treats as an unavoidable technicality here.

Ireland’s Data Protection Commission, dealing with the very corporate architecture Meta uses to route around accountability, fined the Irish subsidiary itself €1.2 billion rather than accepting that the structure shielded anyone.

In each of these markets, courts and regulators found a way to hold the platform to account without first demanding a documentary trail that, in practice, only Meta’s own internal filings could ever fully. Indeed, Nigeria’s outcome is the outlier, not the norm.

Mr. Ogra ends his article by urging ADVAN to help foster reconciliation between advertisers and regulators.

That would have been commendable had ADVAN not spent years engaged in legal confrontation with ARCON over issues bordering on regulatory authority.

Let me stop here by emphasizing that the larger issue is no longer whether the presidential aide is entitled to his opinion. Every Nigerian enjoys that right.

The real issue is whether he should be the one leading what increasingly appears to be an industry campaign against a statutory agency of the same Federal Government he has been appointed to serve.

If Mr. Ogra wishes to be the public face of ADVAN’s long-running disagreements with ARCON, that is entirely his prerogative. But public office comes with obligations that demand restraint, neutrality and an acute awareness of perception.

The Office of the President should never be seen, rightly or wrongly, as taking sides in a dispute involving one of its own regulatory agencies and a multinational corporation.

That is why Mr. Ogra should reflect carefully on the implications of his intervention. If he believes so strongly in ADVAN’s cause that he intends to become one of its principal public advocates in its continuing contest with ARCON, then the honourable course would be to first relinquish his role as Senior Special Assistant to the President.

He cannot effectively wear the hat of a presidential spokesman while simultaneously projecting himself as a leading voice in a battle that pits an industry association against an agency of the Federal Government.

This is more so as every response directed at him in this matter inevitably risks being interpreted as a response to the Presidency itself.

That serves neither President Bola Tinubu, whose office ought to remain above such industry disputes, nor the integrity of government institutions.

Also read: Facebook Nigeria vs ARCON’s judgment: Not about fine but consumer protection at risk of vulnerability

Public confidence is not strengthened when a presidential aide appears to be publicly undermining one regulator while defending the legal victory of a private multinational company.