Telephone (011) 781-2006 · Fax ( 011) 781-1616

e-mail: asasa.org.za

Thursday

2001 10 25

Committee Secretary of the Portfolio Committee

on Communications

Attention: Ms Rita Schaafsma

Dear Ms Schaafsma

The Advertising Standards Authority of South Africa (ASA), has taken note that Parliament will be conducting public hearings on the state of the advertising and marketing industry in South Africa in regard to racism.

The Advertising Standards Authority is not in a position to comment on racism in the media at large as the ASA does not have control over the industry other than to regulate the content of advertisements, subsequent to publication.

As there are clearly concerns about racism in the media, the ASA would however, like to provide information in regard to discrimination and racism as it pertains to the content of advertising.

• legal, decent, honest and truthful;
• prepared with a sense of social responsibility to the consumer and to society; and
• shows respect for the rules of fair competition.

The Code of Advertising Practice is specifically worded to deal with any form of discrimination or exploitation on the basis of race or ethnicity in advertising.

The SA Code conforms to the Bill of Rights contained in the Constitution (Act 193 of 1996) and discrimination is defined as follows in the Code:

Under the General Principles of the Code, the Discrimination Clause (Section II, Clause 3.4) reads as follows:

The following bodies and their members are required to adhere to the Code of Advertising Practice and to amend or withdraw any advertising which is not in compliance with the Code:

Once an advertisement has been published, the onus rests with the public and with competitors to lodge a complaint with the ASA, should they feel aggrieved by a specific advertisement. The ASA is thus a reactive body, similar to a court, which investigates and adjudicates on the content of advertising when a complaint is received. The very nature of advertising demands swift action, and the ASA’s procedure is designed to meet this particular need.

When a complaint is received, the ASA Directorate will in the first instance attempt to resolve the complaint fast and effectively. In many instances advertisers will voluntarily withdraw an advertisement as soon as complaints are received.

Where required, complaints are considered by the Advertising Standards Committee. To ensure credibility and representivity 50% of members serving on this Committee are nominated by public bodies and 50% by the industry.

Any party who feels aggrieved by a decision of the Advertising Standards Committee may lodge an appeal. The Appeal Committee is chaired by Mr Mervyn King formerly a judge of the High Court.

The ASA works closely with government and statutory bodies such as the Human Rights Commission, the Commission for Gender Equality and the Consumer Affairs Committee.

The Landrover Freelander print advertisement serves as an example of how complaints about discriminatory advertising are dealt with.

In this instance complaints were received from the public, the Human Rights Commission and the Commission for Gender Equality. The ASA acted swiftly to convene a meeting of the Advertising Standards Committee. The finding of the Committee as well as a statement prepared by the ASA is attached hereto.

Of significance is the fact that for the first time the advertiser was instructed to place a statement, prepared by the ASA, in all the media in which the offending advertisement originally appeared and to pay for both the media and production costs.

This decision sent a powerful message to the advertising, marketing and media industry to act responsibly in the commissioning, preparation and placement of advertising.

The outcome of all adjudications dealt with by the ASA is posted on the ASA’s website for a period of two weeks. All contraventions of the Code are published in "Rulings & Reasons" and widely distributed to the media.

The ASA’s website address is – www.asasa.org.za

In June 2001, following the Landrover Freelander ruling, the ASA hosted a seminar, inviting various relevant bodies to participate in order to create a greater awareness within the advertising, marketing and media industry of the impact of human rights on advertising.

In presentations to marketers, advertising agencies, media owners, universities and training institutions, human rights, as it pertains to the content of advertising, is explained.

Over the last two years (1999 - 2000) the ASA dealt with a total of 2,064 complaints.

• 2.6% of the total number of complaints (54) related to discrimination in its broadest context
• 1.2% of overall complaints (25) related to racism per se
• The total number of advertisements which attracted complaints about racism was 5.

Bearing in mind that the ASA deals with television, radio, newspaper, magazine and outdoor advertising, the level of complaints about racism in advertisements would seem to indicate that race and ethnicity is, in general, treated with care. Should advertisers display any form of insensitivity, a Code, an effective system of adjudication and the necessary sanctions are in place to deal with complaints at no cost to members of the public.

We trust that this information is of assistance. Should you believe it necessary for the ASA to make an oral submission, kindly advise us of the date and time.

Yours sincerely

DELINE BEUKES

In the matter between:

and

At a meeting of the Advertising Standards Committee held on 7 December 2000, the Committee considered the complaints lodged by the ten complainants against the Land Rover Freelander "Himba" press advertisement.

In summary, the complainants submitted that the advertisement perpetuates a culture of sexism and racism against women; is demeaning and derogatory to women; is offensive; disrespectful of African culture; negates human dignity; and is irresponsible.

In essence, TBWA Hunt Lascaris, on behalf of Land Rover, submitted in response that, whilst the advertisement has been withdrawn, it does not believe that the advertisement contravenes the Code, as it constitutes hyperbole.

For the Commission on Gender Equality the following representatives appeared:

1. Ms Nomfundo Luphondwana

2. Ms Thabisile Radebe

For the Human Rights Commission, Mr M C Moodliar appeared.

For Land Rover, the following representatives made representations:

The other parties to the matter chose not to be personally represented.

In view of the objections raised, the following clauses are of relevance:

In argument, the Human Rights Commission and the Commission on Gender Equality also raised Section II, Clause 3.5 (Discrimination).

Whilst the Committee noted that the advertisement has already been withdrawn, the merits of the matter have to be considered in order to determine whether the imposition of sanctions as called for by some of the complainants, is justified.

Turning to the specific sections of the Code.

The advertisement is to be viewed against the background of the South Africa of today, and its diverse population and culture. Firstly, it cannot be said that the advertisement was prepared with a sense of responsibility, in that the advertisement does not contribute towards the work of gender and racial healing that is essential to the building of a new society. Secondly, the advertisement elicited public outrage. The advertisement is therefore in contravention of Clause 1.2 of Section I.

The manner in which the female figure is depicted in the context of the advertisement as a whole is exploitative, and constitutes racial stereotyping. This lack of responsibility on the part of the respondent and its advertising agency is bringing advertising into disrepute and is accordingly in breach of Clause 1.4 of Section I.

It is not the nudity in the advertisement, but the misuse, abuse and distortion of the woman’s nudity that violates human dignity. It therefore offends consumer susceptibilities and is indecent, and falls foul of the provisions of Clauses 1 and 3.4 of Section II.

The insensitive portrayal of the Himba woman, and the fact that the advertisement makes a mockery of African culture, perpetuates the insensitivities of gender and culture inequality. It therefore imposes a disadvantage on the basis of gender, culture and ethnicity resulting in discrimination within the meaning of Clause 3.5 of Section II.

Whilst humour undeniably has its place in advertising, this should be weighed against the susceptibilities of a diverse society. In light of the aforegoing paragraphs, it cannot be concluded that the advertisement constitutes hyperbole or harmless parody within the meaning of Clause 4.2.3 of Section II.

The Code is based on the principles encapsulated in the SA Constitution. It is aimed at protecting and promoting a culture of human rights. Advertisers, advertising practitioners and the media are required to adhere not only to the letter, but also the spirit of the Code. With this in mind, and given the fact that the advertisement is in breach of the Code as set out above, it is not necessary to rule in terms of Clause 1.1 of Section I.

Given the above, the sanction of adverse publicity is to be imposed as a result of the complaints before the Committee, on the following basis: The ASA will prepare the essence of this ruling in the form of a statement. This statement is to appear in all the publications that carried the advertisement at issue. The production and media costs are to be borne by the advertiser.

As in terms of Clause 11 of the Preface, "all entities bound by the Code shall neither prepare, nor accept advertising which conflicts with the Code", the AAA, ASOM and PMSA are advised to apply whatever sanctions they consider appropriate on the parties to this matter.

ASA member bodies, and in particular the AAA, ASOM, NAB and PMSA, are strongly advised to educate their members in respect of the SA Constitution and related legislation, so as to observe and promote a culture of human rights.

Contrary to what has been alleged by Land Rover, it must be pointed out that the advertisement had not been submitted to the ASA for evaluation prior to publication, as the ASA is a dispute resolution forum that deals with the conformance of advertising to the Code, upon receipt of a complaint.

HARD COPY TO BE FORWARDED

THE IMPACT OF HUMAN RIGHTS & CONSUMER RIGHTS ON THE ADVERTISING INDUSTRY

The Advertising Standards Authority (ASA) is hosting an industry information seminar to promote a human rights culture, and to inform marketers, agencies, and media owners on how people’s rights impact on advertising and self-regulation. This seminar offers you the opportunity to gain vital knowledge about the Bill of Rights, consumer rights, children’s rights and gender issues. There are a limited number of seats available so RSVP soon.

Guest speakers - Mervyn King, President of the ASA, will introduce expert speakers such as Nkwenkwe Nkomo, Chairman of the Association of Advertising Agencies and Noma Simamane, Branding Consultant, who will discuss life before the Bill of Rights. Thereafter, advocate Paul Jammy will explain the Bill of Rights.

Representing the Human Rights Commission is Mothusi Lepheana, who will address the issue of human rights and dignity, followed by Teboho Matsime from the Commission on Gender Equality, who will speak on the topic of gender issues. Chief Executive Officer of the Consumer Institute of SA, Diane Terblanche will present on consumer rights. Thoko Mkhwanazi Xaluva representing the presidency of the Republic of SA will conclude the morning seminar with a talk on children’s rights.