BY Gaelyn Scott
intellectual property (IP)
The Advertising Regulatory Board: no one-trick pony
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.
For advice on advertising law and ARB-related matters, please contact ENSafrica’s Gaelyn Scott, who has successfully defended and instituted a multitude of ARB (previously Advertising Standards Authority) complaints over the years.