First published in the Daily Maverick 168 weekly newspaper.
There is growing discontent among creative directors over adverse Advertising Regulatory Board (ARB) rulings on supposed “offensive adverts”, which they say are made by people with limited or no creative expertise – with huge commercial implications for ad agencies and their clients.
In a “woke” world, where many people are easily triggered, it takes just one complaint from the public – who may or may not be working for the opposition – to kill projects.
This week, heavyweights from advertising’s Creative Circle, the Loerie Awards and a leading academic who advises the industry called for more inclusion into ARB processes – and for its “code” to be rewritten to represent the South African context.
Professor Piet Delport, who heads the Association for Communication and Advertising’s advisory service for the sector, says while self-regulation is critical for the industry and the consumer, the ARB code is problematic on offensive advertising.
“The Code of Advertising Practice is excellent, and its application is 99.9% correct – but it falls flat where it comes to deciding on offensive ads. Who decides what is offensive?” he says.
While retail adverts making objective claims must be taken seriously, corporate ads employ hyperbole to grab attention.
Offence is subjective and if it is not widespread, plausible or serious, it cannot be deemed to be valid, Delport says, because someone will always be offended. And there is no way that any advertiser will go out into the market and not test their product on some level, because “it’s a fine, fine science”.
With the Big John ad for Chicken Licken, which turned colonialism on its head by sending a South African to Europe, market research found viewers deemed it funny. But the ARB ruled against it and on appeal decided it was not funny, as “you cannot make a joke about something that offends people”.
The ARB code, says Delport, should be split into two parts: one to determine whether an advert is misleading, by objectively measuring it against the substantiation as required by the
Code of Advertising Practice, and another to test what is deemed to be offensive – and the advertiser must be able to bring evidence.
“In law, the judge decides on what the reasonable person would do. But the ARB has set itself up to decide on what is offensive, which cannot be correct. … Offence is not binary, there are degrees. If it is marginally offensive, then it is what it is. You cannot judge offence and deception in the same manner.”
SA’s code of advertising practice is aligned with international standards, which Delport believes is part of the problem.
“I don’t care about what the British company law says. I care about South Africa … We need to develop our own code, which is applicable to us.”
If the board hears a complaint on an offensive advert, it must also allow the advertiser to bring its survey data showing that it isn’t offensive to the likely viewer. “You have to judge the ad on its effect on the likely viewer and the context. After 10pm advertisers can show adult ads, while beer ads are aimed at men.”
Peter Khoury, chief creative officer of TBWA\Hunt\Lascaris and the chairperson of the Creative Circle, agrees. While his agency has not received adverse rulings from the ARB or its predecessor, the Advertising Standards Authority (ASA), in more than a decade, he believes representatives from the Loeries and the Creative Circle should have a seat at the ARB table.
“At the Creative Circle, we’re dedicated to inspiring the ‘transformation of product, people and perception through the power of creativity’. We believe that our freedom of expression must be protected … If it’s a contentious ruling, there has to be an understanding that adverts cost a lot of money [and] they are well researched …”
If there’s a valid reason for ruling against an advert, it’s valid, he says, but there must be more debate.
Threatened by cancel culture, we should not forget to laugh as South Africans, Khoury says.
The Big John advert, pulled in 2018, had the potential to be a massive blow for Joe Public United. The adverse ruling was upheld on appeal against Chicken Licken, based on the complaint by a consumer who failed to arrive for any of the hearings, or provide further proof.
Founding partner Pepe Marais says they were shocked to hear that the ad fell foul of the board: “It was created by a black team. It was never about colonisation but about Big John’s hunger to learn about Europe.”
Viewers, he says, went “gaga” over the ad. They received no negative comments, with more than 3,000 “likes” on Facebook.
At the old ASA we saw an orchestrated complaint by angry Christians against a Nando’s ad. There were 2,000 complaints … The ad they described, which none of them had actually seen, didn’t exist. This one did not exist and there were 2,000 complaints.
That advert cost more than R9-million to produce – one of Joe Public’s three big adverts for the year. It had to put R300,000 into research to determine whether it was offensive or not, with 4% saying they were “mildly” offended, which Marais believes was tainted by a narrative in the press.
“We used that evidence in the court and the judge used it against us. Even the judge they used was emotional. I may have a biased view on this, but it is happening more and more. Where do you draw the line?”
Marais believes not enough people with insight into the creative process have a say in the ARB processes. “If you have a body that regulates doctors and the lawyers make the calls, they don’t know enough about medicine to make informed [decisions].”
Agencies are furthermore ranked and the top-flight agencies have no say: “You can’t have someone playing rugby for the B team in Kimberley making decisions on a top team in Gauteng. So, some decisions are flimsy, based on opinions and not fact. How do you have a court case where the plaintiff doesn’t come or provide evidence that they might not work for the opposition, while the defendant comes up with research, everything to back up their case?”
Joe Public did not lose the client, but it could have – or the client could have insisted on its money back. But it agreed with the agency that the ruling was illogical. The damage was done, though – and the ad was withdrawn from broadcast.
The impact on the creative process is massive, as agencies are now so cautious about creating even mild offence because there are huge consequences. Marais says there needs to be much stricter rules of engagement and whatever that magical number is, it cannot be based on a sample size of one.
Fran Luckin, chief creative officer at Grey Africa and the chairperson of the Loeries, highlights the Windhoek ruling as a case in point. Here, the ARB directorate ruled that the ad should be withdrawn on the basis that it endorses “toxic masculinity”.
“Yet the complaint itself does not at any point mention ‘toxic masculinity’. The complainant objected to the commercial on the grounds that [they] felt it was belittling people for their personal preferences,” she says.
The ruling also concludes that since the interaction in the ad is not humorous, it is to be seen as a serious commentary on how men should behave.
“But humour is a very subjective matter. It seems quite a reach to conclude that ‘because I don’t find the commercial funny, the makers intended its message to be serious.’”
Luckin says based on the comments about the Windhoek advert that she saw on social media, many people found it humorous.
“The directorate notes that the commercial does not overtly say anything like ‘real men drink real beer’ – but argues that that is exactly the problem, since ‘it is the unspoken nature of the communication that makes it particularly dangerous’. This is a dangerous precedent to set, to say that a commercial can be banned for what it doesn’t say.”
The ARB’s CEO, Gail Schimmel, says she is in “absolute support” of more representation at the board. “[Loerie CEO] Preetesh Sewraj and I had a chat about this after the Windhoek ad came out, where I … expressed my view that Creative Circle should become a member of the ARB,” she says. “Our existing members find it quite hard to find reliable representatives for the appeal committees who are willing to give of their time to the industry, and who are willing to be part of decisions that might not always be popular, and Creative Circle might also discover that people are quicker to complain than to volunteer their time. I really hope that that is not the case.”
Offence is a difficult issue to rule on, Schimmel says, but “we do not apply the code like a popularity contest. Just because most people think an ad is acceptable doesn’t mean it is – look at the advertising that was popular and accepted 50 years ago and ask yourself if that was okay, just because everyone liked it.”
She says the Windhoek ruling was based on the board’s gender clause and not offence, claiming that while many members of the industry are publicly angry, “many others have quietly commented to me that they think it is the right decision, and a very welcome move in putting our money where our mouths are when it comes to the actions that we talk about as an industry around gender portrayal in advertising”.
The code is dynamic, she adds, saying that they had already received input from marketing regulatory expert Dr Stefan Vos on reworking the offence clause in 2021.
Schimmel says there are systems in place to prevent competitors from undermining others’ work, including not keeping complainants’ names confidential.
Acting on a single valid complaint is the “least arbitrary” number, which is the international norm. Schimmel says otherwise, more invalid complaints are likely to be people embarking on orchestrated campaigns, which would test their limited human resources to handle such volumes.
“At the old ASA we saw an orchestrated complaint by angry Christians against a Nando’s ad. There were 2,000 complaints … The ad they described, which none of them had actually seen, didn’t exist. This one did not exist and there were 2,000 complaints.”
Last year, the board made 78 formal decisions, with only one not popular with the industry, she says.
The Windhoek ad is now being appealed. “It will be very interesting to see what happens. But the appeals exist to test the decisions.” DM168
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