Consumers Protection in Advertised Promotion and unsolicited Commercial Calls and Text Messages in Nigeria

Promotional adverts in the Nigerian Telecoms Industry have become prevalent with the advent of the Global Systems for Mobile Telecommunications (GSM). Telecom companies promise subscribers various items and gifts with a view to out-do each other. Most of the time, a subscriber receives an unsolicited commercial call, or a text message at odd hours trying to sell a product or urging subscribers to participate in a promotion or a text message offering thousands of products and services. All of these unsolicited commercial and nuisance calls and messages can be very frustrating and annoying.

The relationship between a subscriber and a telecoms operator is contractual, see the case of NJIKONYE v MTN NIG. TELECOMMUNICATIONS LTD (2008) 9 NWLR (Pt. 1092) 339. Once a subscriber purchases a SIM Pack from any of the telecoms operators, a contractual relationship is thereby established. The contractual relationship between the subscriber and the telecoms operators is subject to the terms and conditions contained in the SIM pack issued to the subscriber at point of purchase. The subscriber, through the regular purchase of airtime and calls, keeps the above contractual relationship alive. The said telecoms operator, by crediting the value of the airtime so purchased to the SIM card of the subscriber, also acknowledges the existence of the contractual relationship.

Section 3 (1) Nigerian Communications Act, CAP N97 LFN, 2004, established the Nigerian Communications Commissions (hereinafter the “NCC”) with responsibility to regulate the communication industry in Nigeria, by the issuance of operating licences, etc. The protection and promotion of the interests of consumers against unfair practices, including unfair advertisement or promotion by telecoms operators, is one of the core functions of the Commission. The Nigerian Communications Act and the Nigerian Communications (Enforcement Processes, etc.) Regulations 2005 empowered the NCC to make guidelines for minimum standards and requirements in respect of advertisements and promotions of products and services by the telecoms operators in Nigeria. See Article8 (1), Nigerian Communication (Enforcement Processes, etc) Regulation 2005.

Pursuant to the above regulatory powers, the NCC made and published the Nigerian Communications Commission Guidelines on Advertisements and Promotions (hereinafter “the Guidelines”). Article 2 of the guidelines defined advertisement thus: “Advertisement” means any message, the content of which is controlled directly or indirectly by the advertiser, expressed in any language and communicated in any medium with the intent to influence their choice, opinion or behavior.’’ While promotion is defined in the said guideline as: “… any message, the content of which is controlled directly or indirectly by the advertiser, expressed in any language and communicated in any medium with the intent to influence their choice, opinion or behavior in order to receive a reward or benefit.’’

It is clear from the above definitions that the contents and forms of an advertisement and promotion are solely for the telecoms operators carrying out the promotional advertisement. However, in line with the regulatory and supervisory powers of the NCC in prescribing minimum standards and requirements for promotional advertisements in the Nigerian telecoms industry, Article 3 of the guidelines lays down the minimum standards and requirements of promotions and advertisements that the telecoms operators must comply with. These minimum standards and requirements are made mandatory and must be complied with at all times if the promotional advertisement must be approved by the NCC.

The minimum standards and requirements oblige operators to attach detailed reports of the advertisement clearly specifying the goods and/or services and the target consumers. A telecom operator wishing to make a promotional advertisement after complying with the minimum standards and requirements shall apply, attaching a detailed report of the promotion clearly specifying the goods and/or services and the target consumers to the NCC within seven days for approval before going public. See Article 4 (i) (iii) of the Guidelines, and Section 8 (2) of the Nigerian Communication (Enforcement Processes, etc.) Regulation 2005. The approval if granted must be registered with the Consumers Protection Council (CPC) within three days of the launch of the promotions in accordance with Article 4 (v) of the Guidelines.

The philosophy behind the above is to enable the NCC and the CPC prevent exploitation of consumers of the operators’ products and services. The vending powers of the regulatory agencies are to prevent any abuse such operators may perpetrate on consumers and the general public. It is to enforce complete disclosure of information, free flow of truthful information and prevent unfair practices, fraud and misrepresentation about the prizes and goods to be won. The regulatory agencies must approve the contents of the advert before it is aired or published and advertised to the public.

However, in cases where operators wish to give out prizes ranging from cars, houses, aeroplanes, cash prizes, etc., the existence or availability of these prizes must be ascertained and verified by the NCC and the CPC before approval is granted. For example, for an advertised promotion promising subscribers a brand new aeroplane to be approved and registered with the relevant government regulatory agencies, the necessary documentation must be exhibited to the application for approval. In the above example, the NCC and the CPC must see to the availability of the aeroplane, or request for the production of contractual documentations between the telecoms operator involved in the promotion and the aviation company engaged to manufacture the aeroplane. The specification, grade, nature, size, type and operating capacity of the aeroplane must be certain, and genuine efforts must be in place to produce and/or manufacture it. The NCC and the CPC must liaise with the Nigerian Civil Aviation Authority in this regard before approval and registration respectively because matters of aviation are within the statutory supervision and control of the NCCA. The above procedure is not always the case as all kinds of telecom promos are aired without the necessary approval and clearance from the NCC and CPC.

The Advertising Practitioners Council of Nigeria Regulations, Procedures and Monitoring Regulations stipulates that; ‘’All consumer promotions are required to be verified by the Advertising Standards Panel (ASP). When applications are made for the verification of any consumer promotion, the promotional items offered prospects in the promotions is/(are) to be assembled for the ASP’s verification, to ascertain that what is being promised consumers by the advertisers/promoters are actually on ground before approval is given to any promotion. This ensures that the consumers are not deceived.’’ (Emphasis supplied). It is clear from the above quotation that the existence of the promotional items must be verifiable and certain. This is to prevent fraudulent, dishonest and untrue promotional advertisements.

Consumers of telecoms services are entitled to the right to be given the facts needed to make an informed choice, the right to be protected against dishonest or misleading advertisement and the right to get truthful and honest information about the promotional items. This is aimed at preventing fraudulent and unwholesome practices by the advertisers/promoters of these services. A subscriber winner in an advertised telecoms promo is entitled to sue for the ‘’prize’’ in the event that the ‘’promoter’’ fails, refuses and neglects to hand over the ‘’prize’’ to the winner(s). The subscriber winner can base his action on breach of contract and enforce performance on the part of the “promoter”. The promotional advert is tantamount to an offer made to the whole world and acceptance of the offer is participating in the promo, see CARLILL V CARBOLIC SMOKE BALL COMPANY [1893] Q.B. 256.

It should be noted that these promotional advertisements are also made vide unsolicited tele-marketing calls and text messages to subscribers urging them to participate in a telecoms promotional advertisements. These uncontrolled unsolicited tele-marketing calls and text messages have been a source of nuisance to subscriber as they constitute of privacy. A subscriber or an owner of a telephone is entitled to his privacy, and receiving unsolicited commercial calls, text messages, or nuisance marketing calls or promotional calls at odd hours is tantamount to a violation of this right. A right to privacy carries with it a right not to be unduly and unnecessarily disturbed. In the United States of America, the Telephone Consumer Protection Act of 1991, Public Law No. 102-243, 105 227 (TCPA) which was passed in 1991 restricts telephone marketing or solicitations. The TCPA 1991 prohibits telemarketers from unsolicited commercial calls and/or text messages if the recipient asked not to be called or sent a text message. In the event of violation of the TCPA, a subscriber may sue for damages for violation and may also seek an injunction against the telemarketer(s). The constitutionality of the TCPA was upheld in the case of   Moser v. FCC 46 F.3d 970 (9th Cir. 1995) by the USA 9th Circuit Court. See also the case of Destination Ventures Ltd. v. FCC 46 F.3d 54 (9th Cir. 1995). In the USA, unsolicited commercial calls and text messages are unlawful and a breach of the law. In this regard, anybody whose right to privacy has been violated by unsolicited commercial calls or text messages is entitled to sue under Section 227 (3) (a), (b), (c)Public Law No. 102-243, 105 227.

In India, the Telecom Regulatory Authority of India (TRAI), under The Telecom Unsolicited Commercial Communications Regulations, 2007 (4 of 2007) amended by The Telecom Unsolicited Commercial Communications (Second Amendment) Regulations, 2008, (No. 3 of 2008) had barred unsolicited commercial calls and text messages between 9pm and 9am and has also barred Tele-marketing firms from making commercial calls or sending commercial text messages to Subscribers who had registered their numbers with a “national do not call” (NDC) list. The India Regulatory Authority imposes substantial fines on defaulters. However, in Nigeria, there are no specific regulatory guidelines in respect of unsolicited commercial calls and texts messages and Tele-Marketers and Telecom Providers bombard Subscribers with unsolicited commercial and nuisance calls and text messages even at odd hours. These calls and text messages, as stated earlier are annoying and frustrating due to their frequency and timing.

In the United Kingdom, companies and organizations are permitted by law to make live marketing calls to customers and would-be-customers. However, such companies and organizations cannot make such live marketing calls if the customer had previously warned against such calls or the customer registers his number with the Telephone Preference Service (TPS) or Corporate Telephone Preference Service (CTPS).

In conclusion, the National Assembly should speed up the passage of the Nigerian Telephone Consumers Protection Bill 2013 pending before the House of Representatives, so as to protect the privacy of consumers against unsolicited commercial calls and text messages. In the alternative, the NCC should make and publish guidelines regulating unsolicited commercial calls and text messages by telecom companies and Tele-Marketers in Nigeria.

Benedict Oregbemhe

Senior Associate, SPA Ajibade & Co., [Legal Practitioners, Arbitrators and Notaries].