Opinionista Justin McCarthy 19 July 2013

The ASA and double standards: Too easy to shoot the administrators

Any regulator will tell you to administer is a largely thankless job. In so many instances you’re damned if you do and damned if you don’t. It’s rare when you manage to please most of the people just once, forget about most of the time. For self-regulatory bodies it’s even worse. In essence they are bodies that lack the legitimacy and teeth that institutional regulators have, leaving them open to pillory from all quarters. It irks me no end that in the Advertising Standards Agency’s instance, the pillorying emanates predominantly from the very quarters it seeks to protect.

This piece started out as a comment I began posting about another article in the Daily Maverick by Rebecca Davis before graduating to a full blown opinion piece in its own right.

As an ex ex-officio member of Advertising Standards Agency (ASA) (I once held the ACA’s [Association for Communication and Advertising] representative seat on the AIT [Advertising Industry Tribunal]), I can attest to some of the difficulties this entity faces. As a self-regulatory body, it is funded and governed by the subscribing parties, of which at last count there were 20. One of those, the Marketing Association of South Africa (Masa) as it exists today, was defunct for a good number of years and has only recently been reconstituted. Ironic really, given that Masa represents a very significant percentage of all advertisers.

The ASA’s mandate is extremely broad and it is overwhelmed with complaints. In 2011, 96% of the 2,189 complaints were lodged by consumers – a significant proportion of which were without substance. Unsurprising really as the public is not generally expected to familiarise itself with the code, but this places the onus of responsibility for educating and informing the public in addition to the administrative burden of enforcement on the ASA itself. Here lies its Achilles’ heel. It is swamped with consumer complaints ranging from the ridiculous to the legitimate to the outright vexatious. It is obliged to follow procedure on each one of them, which accounts in large part for the massive workload and overbearing cost. Yet it is unequivocally in the interests of all subscribing parties, as well as the public, to maintain its self-regulatory status. Can anyone imagine this process being managed by government? It would be beyond dysfunctional. Thankfully, not even government wants to regulate the industry.

Complaints are divided into two categories – consumer and competitor – and are governed differently. The onus of responsibility on competitors is justifiably significant, and a complaint must be accompanied by a non-refundable filing fee, a measure which usually ensures the application is of a reasonable element of maturity and sensibility. The AIT is responsible for adjudicating these matters; the appeals body of which was presided over in my day by no lesser an authority than Mervyn E King, SC. Today that position is held by former Constitutional Court judge Kate O’Regan. I gleaned a great deal serving under and facing this learned mind while representing either a defendant or a complainant, and I am definitely the better judge as a result of it.

Consumer complaints are adjudicated by the directorate itself, while appeals are presided over by the ASC (Advertising Standards Committee), which is comprised mainly of directorate’s employees. Most of them have no legal training per se; this is not nor should be a prerequisite. In my experience it is the directorate and ASC that comes under fire on most occasions rather than the tribunal. In the absence of hard data, a glance at the skills and experience levels of the two parties may be an indication as to why that’s the case. Perhaps you think that unfair given the extreme ratio of consumer to competitor complaints, but the anecdotal evidence suggests otherwise. On a personal level I have had many a grumble with what I deem to be oversensitivity on the part of the directorate. On a professional level, as an advertising practitioner, I have been nonplussed by some of the rulings against what I deem to be perfectly acceptable forms of advertising as defined by the code. However, most of the rulings that have ignited public or sectoral outrage have been overturned on appeal, and where not, a closer examination of the ruling inevitably reveals some telling evidence or lack thereof on the part of the defendant. Like the City of Johannesburg example quoted by Davis – the City failed to respond to the complaint and as such, no defence was mounted. In the absence of a defence, the directorate ruled in favour of the evidence submitted by the complainant. That’s not a technicality, that’s either incompetence or abandonment. So the ratio of good to poor rulings is actually incredibly good.

What gets my goat is not the occasional bad ruling but rather the intense criticism that the ASA comes under from its own members. By all means have a crack, criticise and hold to account, but be balanced, constructive and give credit where due. In the aforementioned article Davis quotes ‘marketing expert’ Chris Moerdyk and Avusa (now TMG) managing director Mike Robertson – both outspoken critics of the ASA. Predictably, they both offer scathing criticism. Equally predictably, neither offers a shred of an alternative solution. Widely touted in general media circles variously as a marketing and communications expert of sorts, I find Moerdyk’s repetitive denunciation of the ASA to have more than a light seasoning of double standards about it. As a trained journalist and now non-executive chair of online publisher BizCommunity, one might expect Moerdyk to apply a minimum level of journalistic balance and integrity, but his regular outbursts contain little more than flailing and frequently inaccurate accusations of incompetence that do little to advance the interests of his claimed profession.

I find it unprofessional and distasteful that some marketers, advertising practitioners, media owners and commentators are so quick to decry the ASA, very often without the facts or full understanding of the case in question. They appear ironically oblivious to the fact that the directorate isn’t the party that makes the rules, but the collective bodies they are members of. The ASA merely enforces the code. If you have a problem with the code or its application, then do something about it – volunteer some of your time and energy into making a constructive contribution to self-regulation or lose the right to ascend your soapbox of destructive rancour. The ASA is far from perfect and sure could do with some of that negative energy channelled positively through its lonely corridors. DM

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