Business

ASA: Upholding standards or stifling expression?

By Rebecca Davis 12 July 2013

The Advertising Standards Authority is in the news again, this time for its ruling that an ad for the City of Johannesburg must be withdrawn for making misleading claims about the city’s financial and environmental health. In recent years the ASA has had a mixed reputation, and its rulings regularly cause a bit of a stir. REBECCA DAVIS tried – with limited success – to investigate how the body actually makes its decisions.

Few people would dispute the fact that there is the need for some form of regulation as to what advertising may be displayed in South Africa – or any country, in fact. This is not simply an issue of taste, decency, or even to protect consumers’ wallets: in some cases, it can be a matter of life and death. In 2005, for instance, the ASA ruled that the notorious Mathias Rath had to stop advertising that his dietary supplements were a safer and more effective treatment for HIV than anti-retrovirals.

South Africa’s ASA was set up in 1968 to oversee the ad industry’s self-regulation, and it consists of over 20 member bodies – marketers, media owners and advertisers – who financially contribute towards its running. Its task is to ensure that the country’s Code of Advertising Practice is adhered to, a document which has had to adapt over the years to South Africa’s shifting social and legal climate. (Post-1994, it had to be brought in line with the Constitution, for instance.)

The Code of Advertising Practice – the ASA’s Bible – is an interesting document. Among all the provisions you’d expect, there are some less obvious clauses. Advertisements should not “without justifiable reason” play on fear, for instance. No advertisements for any smoking deterrent will be accepted unless the advertiser makes it clear “that its success will be dependent upon the willpower of the user”. Advertisements for “products with unproven supernatural properties” can’t imply that the product will change the user’s life “unless such statements are substantiated”, which sounds like an oxymoronic challenge. Ads for infant feeding bottles have to use an alternative to milk, like fruit juice, as the use of milk might be “prejudicial to breastfeeding”.

The ASA is reactive rather than proactive, which is to say it responds to complaints, either from consumers or competitors. The Daily Maverick did not receive a response to our repeated requests for a copy of the body’s last annual report, and the most recent annual report available on the ASA website covers 2007/2008, so we don’t know exactly how many complaints the ASA received last year. In 2011, the ASA dealt with 2,189 complaints, 2,099 of which were from consumers. From the late 90s onwards, a pattern seemed to emerge which saw men lay far more advertising complaints than women.

The Daily Maverick wanted to find out from the ASA what kind of background or expertise the ASA staff bring to their assessment of complaints. We didn’t receive an answer to this or any other question. What past ASA rulings make clear, however, is that the body relies on a legal-esque precedent system, drawing heavily on previous rulings in similar contexts, and places a great deal of stock on the notion of a “reasonable consumer”. In cases of great ambiguity, “where the overall impression of the advertisement as a whole is in doubt”, the advertising code allows for the ASA to call for a “consumer reaction test”. Where there is an allegation of discrimination in a complaint lodged with the ASA, the code specifies that an “expert in the field to which the complaint relates” should be called upon for assistance.

Former Head of Legal at the ASA Gail Schimmel told the Daily Maverick that the ASA “has, over the years, become very legalistic”. As Head of Legal, Schimmel had to sign off on all the complaint rulings. “Recently I have been a bit distressed by their failure to think of themselves as serving the industry and failing with trying to get to the truth of matters rather than the legal technicalities,” she said.

By way of example, Schimmel said that it was increasingly possible to win an ASA ruling on the grounds of a technicality. “For example, if you submit a complaint that is unclear in some way, they are more inclined to rule that your complaint was vague, when I believe they should come back to you and ask for clarity,” she said.

CEO Themba Msibi informed the Media Online in October last year that “the number of cases [have] not increased, but have become more complex”. Perhaps it is the growing complexity of the issues before it that leads the ASA towards an increasingly narrow legal consideration of complaints. And indeed, flicking through the ASA’s archive of rulings, it’s clear that the ASA is called to rule upon a vast range of complaints, some of which may have a greater import than might initially seem the case.

In July 2011, for instance, it was reported in the international press that the ASA had “declared Israel an Apartheid State”, a notion which the ASA had to put out a press release hastily denying. The South African Jewish Board of Deputies and another individual had laid a complaint against a radio ad for a group called South African Artists Against Apartheid. The ad featured Faithless lead singer Dave Randall calling for an Apartheid-style boycott of Israel by creative artists. The complainants argued that it was both factually incorrect and irresponsible to compare Israel to an Apartheid state.

The ASA’s response found that it was not possible for the claim that Israel was an Apartheid state to be substantiated. The Directorate cited the clause of the advertising code which states that ads expressing an opinion on controversial issues “shall not be subject to the provision of the Code relating to misleading claims”. Due to this and the fact that the ad was expressing personal views, the complaints were not upheld: “It is not for the Directorate to proclaim as to which political ideas or actions are justifiable,” the ASA’s press release read.

In situations like these it’s hard not to feel that the ASA’s job is indeed a tricky one, especially because their rulings always result in at least one aggrieved party. “Most advertisers I have worked with or encountered have gone through phases of being convinced that the ASA hates them,” Schimmel said. “To be honest, the ASA has neither the resources nor the energy to hate anyone.”

Some industry players have expressed scathing views about the ASA in recent years, complaining about both the quality of their decision-making and their general efficiency. Marketing expert Chris Moerdyk told the Media Online last July that the body was “fast becoming the Mugabe of Marketing, with idiotic rules, iron fists and no money”. Avusa’s Mike Robertson said he believed the ASA had “lost the plot”, adding: “What the industry needs is a body that can resolve disputes fairly, speedily and cheaply. The ASA is not that body.”

The ASA has also come under criticism for demanding budget increases out of line with inflation, and for a lack of transparency in term of their finances. The ASA’s finances are not made available to the public on the grounds that the ASA is not funded by public money, but from contributions from the member bodies. In October last year, ASA chairman Nkwenkwe Nkomo admitted that there were funding issues with the body, but said that ASA staff had foregone salary raises for two years and were cutting back on office space and ad hoc service provider fees.

“I think on the whole the ASA does quite well,” said Schimmel, though she noted that these days, she often disagrees with their rulings. “But that is always going to happen with a body like the ASA, and is to be expected.”

Sometimes ASA rulings do seem to err on the side of protecting conservative views rather than creativity of expression. The ASA seems particularly keen to shield religious groups from offence. In a 2008 ruling, the body noted: “While the Directorate must be careful not to sanctify religion to a point that advertisers cannot refer to it, it must take cognizance of the manner in which religious symbols are referred to.” It appears to weigh this responsibility quite heavily. One of their decisions which attracted international media attention was made in October 2011, when the ASA ruled that a TV ad for Axe deodorant which featured angels falling from the sky in response to the deodorant’s supposedly alluring scent had to be withdrawn.

The body summarised the complainant’s concern as follows: “According to the Bible, angels are God’s messengers, and the suggestion that angels will fall for a man wearing this deodorant is incompatible with his belief as a Christian”. The ASA upheld the complaint, arguing: “When it becomes apparent that they are falling from heaven over a man who wears this deodorant [this ad] would be considered disrespectful and offensive to the core beliefs of Christians, as angels are known to be celestial beings regarded as divine and pure.”

The ruling was the subject of a fair amount of ridicule. Law blogger Pierre de Vos suggested that it failed to take into account sub-clause 2 of the advertising code, which states: “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”. De Vos also proposed that the ASA should have asked whether a “reasonable Christian” would have been offended by the advert: a valid point, since the ASA’s other rulings perpetually invoke the hypothetical “reasonable consumer” to uphold or dismiss complaints.

But there is some evidence to suggest that their rulings in this regard may be in line with the wider public sentiment. In March last year, the ASA ruled that Red Bull should withdraw a cartoon TV ad which showed that Jesus Christ was able to walk on water because he had pre-placed stones under the water surface. The complainants argued that “Christians believe that Jesus Christ is alive and sitting at the right hand of God and as such His express permission should have been obtained before being featured in the commercial”. The ASA didn’t necessarily endorse this particular suggestion, but upheld the complaint on the grounds that “the commercial not only makes fun of a basic event of the Christian religion [the miracle of Jesus walking on water], but uses Jesus Christ who is the central figure of this religion, in a comical situation and in a way that trivialised all events and teachings surrounding Jesus and the miracles he performed”.

Market research company Pondering Panda sought thereafter to test what South Africa’s youth made of this decision, with the polling question “Do you think it was right for the Advertising Standards Association [sic] to remove the advert from TV networks?” Of the 1,661 youngsters who responded, 59% felt that the decision was the correct one, with just 27% disagreeing. (Fourteen percent had no strong opinion.) One might hypothesise from this that for older groups – traditionally taken to be more conservative – the results might be weighted even further in favour of the ASA’s decision.

It’s impossible for the ASA’s rulings to please everyone, and it’s equally clear that such a body has a necessary role to play. If the ASA wishes to improve its image, however, it could start by putting more effort into its communications with the public. It was widely reported this week, in media headlines at least, that the ASA had ruled that the City of Johannesburg could not call itself a “world class African city”. In reality, the ASA ordered the City to withdraw the ad making this claim on the basis of factually untrue statements about its financial status and environmental friendliness. DM

Read more:

  • Johannesburg Ordered to Pull ‘World-Class African City’ Ad, on Voice of America

  • Axes out for Advertising Standards Autocracy, in the Media Online

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