The pursuit of perfection has long been a driving force in advertising. I cannot forget the “sparkle” in the teeth from that old Flourish toothpaste ad of the 1990s, or the clothes or toilet that looked immaculately whiter than the colour white. These techniques were designed to convince us, the consumers, to buy a product. But now, with the advent of Artificial Intelligence (AI), the envelope is being stretched further than ever before. So, we must ask: when is far, too far? When does this pursuit of perfection clash with the law?

We’ve seen legislative control over advertising before, such as the National Tobacco Control Act of 2015 and the 2019 regulations, which banned tobacco product ads. This precedent shows that advertising isn’t an unregulated free-for-all. But today’s technology is in an amorphous state, constantly changing, which means we need a flexible legal approach to keep up.

My own wake-up call came from a YouTube ad. A “health professional” recommended a specific product, and I, like many others, fell for it. I even bought the product at the supermarket based on their recommendation. It was only after seeing the ad a few more times that I realised the professional was AI-generated, a complete figment of the advertisers’ imagination. The name was fake, and so was the title of “cardiologist.” This made me question again: when does an advertisement stop being persuasive and start becoming illegal?

It doesn’t help that Nigeria is still finding its footing in regulating AI. The task of managing the use of AI is a monumental one. Our current laws weren’t designed to protect us from the indiscriminate use of AI and AI images, which can easily subdue our thought processes. The perfection of AI means that spotting a fake can be incredibly difficult, even for those of us who are educated, because the technology keeps perfecting itself to become imperfectly human enough to be believable.

The Legal Tightrope for AI Advertisements

While we await a specific AI legal playbook, Nigerian businesses using AI for advertising must navigate a complex legal landscape using existing laws.

• The Copyright Act 2022: This law is critical. Since AI-generated works generally don’t have a human author, they may not be protected by copyright. This creates a risk for businesses that rely on these works. Moreover, if the AI model was trained on copyrighted material without permission, the advertiser could be liable for infringement.
• The Nigeria Data Protection Act (NDPA) 2023: AI-driven ads often rely on our personal data. The NDPA requires consent and transparency when collecting and processing this data. If an AI system makes significant decisions about you (like targeting you with specific ads) without your informed consent, it could be a violation of the NDPA.
• The Federal Competition and Consumer Protection Act (FCCPA) 2018: This is where my “cardiologist” ad comes in. The FCCPA prohibits false and misleading advertising. An AI-generated deepfake or a fake testimonial is a clear example of deception. The Advertising Regulatory Council of Nigeria (ARCON) also needs to take this seriously, with a focus on vetting all ad content to combat fraudulent, AI-generated material where such material either misrepresents its products, product recommendations and where it does so to gain an undue advantage over others.
• The Cybercrimes (Prohibition, Prevention, etc.) Act 2015: While it may not directly apply to all ads, this act could be used against those who use AI-generated deepfakes to spread misinformation, harass individuals, or engage in fraudulent activities.

The Way Forward

I’m watching the government’s efforts with great interest, especially the National Artificial Intelligence Strategy and the recent signing of the Bletchley Declaration on AI Safety. It’s a positive sign, but the global pace of AI adoption is accelerating much faster than our speed at crafting an all-encompassing strategy. We might need to falter to start and perfect along the way.

It’s time to move faster. The use of AI in advertising offers immense potential, but it comes with a serious responsibility to be truthful and transparent. There is a need to use existing laws while equipping our laws to protect all citizens from being misled by a perfectly crafted, but completely fake, advertisement.