19 October 2004
In November 2002 the Portfolio Committee on Communications identified two aspects in regard to the regulation of advertising which needed to be primarily addressed:
- An assessment of the efficacy of the current complex legislative framework and regulatory regime concerning advertising.
- A public awareness campaign to ensure South African citizens are aware of their rights as consumers of advertising and are able to access the means to protect those rights.
Both these matters, as well as other concerns expressed, have been addressed.
1. Legislative Framework
Over the last two years The Advertising Standards Authority of South Africa (ASA) has had several meetings with the Department of Trade and Industry. The Deparment assumed responsibility for an assessment of the current legislative regime as part of drawing up an overarching consumer policy.
This policy resulted in the Draft Green Paper on the Consumer Policy Framework published in the Government Gazette on 9 September 2004. This matter will be dealt with in the government report.
2. Public Awareness
In regard to a public awareness campaign, the following steps were taken by the ASA:
In January 2003, the ASA appointed Mark Data, under the guidance of Prof. Laurie Schlemmer, to conduct "A Provisional Need and Awareness Study of the Advertising Standards Authority of South Africa."
The sample size was 420, drawn on a nationwide basis, distributed as follows:
|Below R2500 per month household income||31%|
|R2500 to R8300 per month||36%|
|R8300 R16700 per month||20%|
Household income above R17000 per month
|Educational level of Grade 9 or less||24%|
|Grade 10 to Grade 12||49%|
|Post matric or degree||27%|
Notwithstanding the fact that it was it was a telephone sample, the respondents included a wide range of socio-economic circumstances. The sample by no means reflects an elite or purely middle class profile and it provides insights across a wide range of the South African population.
The telephone interviews were conducted in the home languages of respondents by highly trained and experienced interviewers at a central location under constant supervision.
The main conclusions were:
- 97% of respondents considered a body like the ASA to be either necessary or essential.
- While not spontaneously in the public mind, the name of the ASA is recognized and recalled by abount one fifth of the telephone-owning public. This level of recognition rises with increased income and socio-economic status. It is higher than average among young people of 16 to 24 years - a good sign.
- It must be borne in mind that high levels of awareness are difficult to achieve. Given the high legitimacy of a body such as the ASA and the fact that substantial proportions of the public experience a range of problems with advertising, the levels of awareness of the ASA should be higher than they are. The level of recognition should and could be increased to around one third of the adult population (16 years plus). A level higher than this would be unusual for a private sector body without a political profile and would be almost impossible to achieve.
- A recognition level of 33% would need approximately 5 years to achieve. It would also need a communication campaign that is tested and monitored by research for impact and effectiveness.
- This study, although based on telephone interviews, has included a sufficient range of variation in the population to provide valuable insights. These insights provide clear indications of how the public awareness of a highly credible organisation such as the ASA could be raised to levels commensurate with the perceived importance of the ASA's role and tasks.
Based on the findings of the research, the ASA Board committed itself to achieving awareness levels of 33% in 5 years and to servicing the complaints resulting from hightened awareness.
2.2 Awareness campaign
The ASA embarked on a more extensive awareness campaign comprising the following:
- A television commercial (English) flighted as a public announcement by SABC 1, 2 and 3 as well as by M-Net and E-TV (84 flightings in 2004);
- Radio commercials in 11 languages (broadcast 224 times nationally in 2004);
- A user friendly summary of the Code of Advertising Practice in
and distributed to consumers through the network of Consumer Affairs Offices in the various provinces.
- A website containing the full Code as well as all recent decisions made by the ASA.
- An educational video about the role and function of the ASA to be made available to organisations, training institutions and other interested parties.
- An E-Newsline primarily aimed at the industry to provide information and guidance in the preparation of advertising.
- Participation in consumer educational programmes.
3. Awareness levels
While the rise in total complaints is indicative of a growth in awareness, a follow up study to track awareness is planned for 2005.
4. Additional funding
To more effectively fulfill its public mandate, funding received from the Industry Trust has as from January 2004, been almost exclusively used to serve consumer rather than industry needs.
The industry agreed that the dispute resolution function offered by the ASA to competitors, would no longer be funded by the voluntary levy paid on advertising. This service is now offered by the ASA on a self-funding basis and is paid for by those advertisers who utilize the service.
The income derived from this source has enabled the ASA to extend the awareness campaign and to appoint and train additional staff to deal with the increase in complaints.
5. Code revision: Discrimination and gender
To adequately address discrimination and gender issues the terms "discrimination", "gender stereotyping" and "negative gender portrayal" were defined in the Code of Advertising Practice:
"Discrimination" means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly -
- imposes burdens, obligations or disadvantages on; or
- withhold benefits, opportunities or advantages from any person on one or more of the following grounds;
- race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, or
- any other analogous ground;
and "discriminate" and "discriminatory" shall have corresponding meanings.
5.2 Gender Stereotyping
"Gender stereotyping" means advertising that portrays a person or persons of a certain gender in a manner that exploits, objectifies or demeans.
5.3 Negative Gender Portrayal
"Negative Gender Portrayal" means advertising that portrays a person or persons of a certain gender in a manner that restricts and entrenches the role of persons of such gender in society or sections of society.
Under the General Principles Sections of the Code, the Offensive Advertising, Discrimination and Gender clauses were revised or added to the Code.
Clause 1.1 of Section II - Offensive advertising
1.1 No advertisement may offend against good taste or decency or be offensive to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
1.2 Advertisements should contain nothing that is likely to cause serious or wide-spread or sectoral offence. 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. In considering whether an advertisement is offensive, consideration will be given, inter alia, to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest.
Clause 3.4 of Section II - Discrimination
3.4 No advertisements shall contain content of any description that is discriminatory, unless, in the opinion of the ASA, such discrimination is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Clause 3.5 of Section II - Gender
3.5 Gender stereotyping or negative gender portrayal shall not be permitted in advertising, unless in the opinion of the ASA, such stereotyping or portrayal is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
These changes have enabled the ASA to deal more effectively with both discrimination and gender issues.
6. The values statement
Dr Danisa Baloyi, as chairperson of the ASA, signed the Values Statement on behalf of the ASA in 2003.
In keeping with the ASA's commitment to inclusivity and diversity, the Advertising Standards Committee, responsible for adjudicating consumer complaints, is comprised of 50% industry representatives (broadcasters, print media, advertisers and advertising agencies) and 50% public representatives. Public representatives are nominated by the following bodies:
|Black Housewives' League||- Nomalizo Mabope|
|Consumer Forum||- Lulu Letlape|
|Independent Electoral Committee||- Lindiwe Ndlela|
|South African Bureau of Standards||- Dareth Baker|
|Commission on Gender Equality||- Themba Kgasi|
|Family and Social Association||- Duckie Mothiba|
|South African National Consumer Forum||- Lillibeth Moolman|
|Childrens Broadcasting Forum||- Nadia Bulbulia|
The Committee is chaired by an independent legal person, Adv. Gcina Malindi, who in the ASA's 2003/4 Annual Report, summarised the work of this Committee as follows:
"We are celebrating 10 years of democracy - a momentous occasion that will prompt all institutions to review the past decade and take stock. At the ASA we have to ask ourselves whether under 10 years of democracy we have matured fast enough to justify continued self-regulation or whether matters have progressed at such a snail's pace that government may have to intervene and impose statutory regulation upon us.
Section 16 in our Bill of Rights affords everyone the right to freedom of expression, but prohibits expression which advocates hatred based on race, ethnicity, gender or religion. In line with these constitutional requirements, the ASA Code (Section II, Clause 1) prohibits advertising that contains anything "likely to cause serious or widespread or sectoral offence". All advertising is required to be "in good taste", be "decent" and not be "offensive to public or sectoral values and sensitivities". Our country is undergoing the painful process of building one nation while acknowledging and celebrating diversity. Government would be quick to step in and impose regulations on the marketing communications industry if the ASA were found to be out of step with the Constitution and the laws that protect all groups, in particular marginalized sectors.
The ASA has, without exception, held everyone in the industry to the principles enunciated in the Code without stifling freedom of expression, in particular "freedom of artistic creativity".
Decisions in complaints against Love Life and Eli Lilly (explicit sexual or sexuality messages); Aqua Velva, La Coste and Data Pro (nudity); Marie Stopes Clinic (abortion); demonstrate that the ASA is able to interpret both the Code and the Constitution in such a way that "prevailing standards" in this diverse society are properly balanced and that a proper interpretation of what is "reasonable and justifiable" is given.
These decisions are taken in the context of the constitutional protection enjoyed by all in an "open and democratic society". Every right claimed has to be consistent with the Bill of Rights, whether claimed by advertiser or complainant. That is why, for example, an advertisement like that by Acer Travel Mate was found to be offensive of the female gender whereas many other advertisements which feature female sexuality were not found offensive.
We look forward to another 10 years of democracy and self-regulation."