12 November 2002
- GCIS, Departments of Communications, and Trade and Industry
Legal Framework
The fundamental and overarching piece of legislation that addresses the conduct of the advertising and marketing industry is the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996). Specific reference to the industry in the Constitution is explicit in sections 9, 16 and 36.
Flowing from the broad framework provided in the Constitution are the following Acts:
- Promotion of Access to Information, 2000 (Act 2 of 2000),
- Promotion of Administrative Justice Act, 2000 (Act 3 of 2000),
- Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000).
The Consumer Affairs Act, 1988
Against this constitutional backdrop, many specific pieces of legislation impact on aspects of advertising and marketing - laws dealing with matters ranging from housing to heraldry; from banks to boxing and broadcasting; from fertilizers to films, fundraising and foodstuffs, etc.
One law more directly deals with the advertising and marketing industry. The Consumer Affairs (Unfair Business Practices), 1988 (Act 71 of 1988), provides for the prohibition and control of 'harmful' businesses practices in the advertising and marketing industry.
Although the definition of a 'harmful' business practice is broad, it stipulates harmful business practice as that which is likely to have direct effect in harming the relations between the industry and the consumers, unreasonably prejudicing the consumer, deceiving any consumer or unfairly affecting the consumer.
The Act is not designed as a prescription to the industry but provides an enabling platform for the Minister of Trade and Industry to exercise options provided for in terms of the Act.
Consumer Affairs Committee
The Consumer Affairs Act, 1988 provides for the establishment of the Consumer Affairs Committee that is tasked to investigate harmful advertising and marketing practices in the industry.
The industry can request the Consumer Affairs Committee to help develop a code of conduct for its individual members. The codes of conduct have no legal status and therefore are unenforceable. However, the Minister of Trade and Industry can, on recommendation by the Consumer Affairs Committee, declare any particular infringement thereof as an unfair business practice.
Liaison Committees
The Chair of the Consumer Affairs Committee has the power to establish Liaison Committees concerned with particular spheres of business practice, in consultation with the Minister. Such a Committee is composed of people who have knowledge and experience of the constituency in question, and has the power to conduct investigations into matters within the ambit of the Act, essentially, matters to do with relations between consumers and the industry. The establishment of such a Liaison Committee drawn from government and industry could provide a platform for assessing the efficacy of the current framework and what need there is for developing or strengthening it.
Furthermore, a Liaison Committee would enhance the capacity of the Consumer Affairs Committee in relation to the rights and protection of the consumer in the industry.
Conclusion
The advertising and marketing industry has established an internationally recognised system of Codes of Conduct for regulating the behaviour of its members.
It is the relationship of the industry towards our changing society as well as towards ordinary consumers that the recurrent investigation into the workings of the industry wrestles. The issue of transformation and diversity in the industry is inevitable and all parties are in agreement.
The role of government in this situation is to try to ensure that the statutory bodies are adequate to the challenges of transformation of the industry.
- GCIS, Departments of Communications, and Trade and Industry