South Africa: The Advertising Regulatory Board: No One-Trick Pony

Last Updated: 25 June 2019
Article by Gaelyn Scott

Most Read Contributor in South Africa, July 2019

We recently reported on a ruling of the new advertising authority in South Africa, the Advertising Regulatory Board (“ARB”). The dealt with the issue of misleading advertising. In this article, we’ll look at three more rulings that make it clear that the ARB deals with a range of important issues.

Privacy and jurisdiction

In the case of Nonkazimale Mbanjwa and Department of Health, the complaint related to billboard advertising placed by the Department of Health. The advert consisted of a photo of a woman and a baby. The complainant claimed that the photo was of her and that it had been used without permission. She said that it had been taken years ago for a particular modelling assignment, and that the photographer had sold it on to other advertisers. The complaint was in terms of clause 11 of section II of the ARB Code, which states that “advertisements should not... portray or refer to, by whatever means, any living persons, unless their express prior permission has been obtained.”

The Department of Health did not respond to the complaint, leading the ARB to conclude that the department would not consider itself bound by any ruling. The Memorandum of Incorporation of the ARB makes it clear that it has no jurisdiction over any person or entity who is not a member, and that it cannot issue any instruction to a non-member unless that party expressly submits to its jurisdiction. The ARB may, however, still consider a complaint involving a non-member and issue a ruling on the matter for the guidance of its members.

The ARB said this: “The Advertiser in this matter is, it appears, an innocent party to this situation... (it) has presumably used the Complainant’s image in good faith, believing that the correct permissions were in place.”

It concluded as follows: “The fact remains, however, that in the absence of submissions to the contrary, the image is used without the Complainant’s permission. Given this, and given the lack of response before the Directorate, the Directorate has no choice but to conclude that the advertising is in breach of Clause 11 of Section II. Members of the ARB are advised not to accept the advertising.”

Race, violence and a sense of humour

The case of Bonita Ngwenya and Comair Ltd dealt with matters of race and violence.

A YouTube advert showed a white couple standing outside their house with suitcases (clearly ready to go on holiday), a black neighbour arriving in his car, the threesome having a friendly chat about the couple’s upcoming holiday, and the neighbour suddenly turning nasty, driving over the luggage and disappearing. This was followed by a voiceover: “Don’t be a travel hater, book affordable holidays, flights, hotels and car rentals – Kulula.com.” The complainant said that the advert incited racial division and portrayed violence.

The ARB described the advert as “clearly over the top and humorous” and that the “hypothetical reasonable viewer will understand the humour in the commercial”. It said that “it is patently clear that the trigger for his action is that he is jealous of their holiday, and irritated by their bragging, and not any racial issue.” It therefore dismissed the complaint based on race as well as a complaint based on violence: “The commercial is clearly exaggerated to be humorous and the viewers would understand that the behaviour in the commercial is unacceptable and should not be emulated.”

Offensiveness and children

In the case of Piet Nienaber and Multichoice (Pty) Ltd, a member of the public lodged a complaint about a YouTube commercial for Showmax. The advert showed a call centre employee watching Showmax on his phone and being so distracted by it that he was rude to a caller, left his desk (in the process pulling office equipment along), grabbed and took a bite out of a fellow employee’s sandwich, and finally ran his finger through the icing of a birthday cake.

The first complaint was that the underlying message was a complete disrespect for the work environment, making the advert offensive. Multichoice argued that the advert was clearly humorous and satirical, and that the “concept of a poorly-behaved employee...is already well-established as an acceptable device to use in a commercial.” It said that it was quite clear from the reactions of the employee’s colleagues that they did not approve.

The ARB agreed. It said that clause 1, section II of the ARB Code talks of an advert that is “likely to cause serious or wide-spread or sectoral offence.” It went on to say that “the fact that a particular product, service or advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or service.”

The ARB went on to say this: “The commercial communicates how distracting the Showmax offer is in a totally over the top way, and the hypothetical reasonable consumer would not take it as a suggestion of what is normal and acceptable behaviour in a workplace.”

The second complaint was that the advert was harmful to children, as per clause 14 of section II of the Code of Advertising Practice. That complaint also failed. The ARB said this: “The Directorate shared the Complainant’s discomfort with the idea of children thinking that it is acceptable to take someone’s clearly marked food or run your finger through the icing of a birthday cake. However, given how over-the-top the commercial is, the Directorate is convinced that no child watching the commercial would take it as a literal portrayal of how one SHOULD act in the workplace, but rather as a portrayal of bad behaviour in the workplace.”

We will follow future rulings of the ARB with interest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions