The out-of-home industry is a maze of legalities and regulations. Just how legal is illegal? Kim Novick finds out how this impacts those involved.
The undercurrent of ‘illegal’ that runs through the out-of-home (OOH) industry has dogged this advertising sector for years. But how real and how relevant is it?
It’s very clear that if a hoarding is erected without appropriate council approval, this would be considered illegal. However, the nuances of the industry, which are a blend of council process, by-laws and the interpretation thereof are such that ruling whether a billboard, hoarding, building wrap, street pole or other medium is illegal is not a black and white issue.
Out of Home Media South Africa (OHMSA) says that media sites not approved by a municipal authority as the final regulator are deemed illegal. However, the regulatory body goes on to say that certain concessions may be made – for example, “sites that were originally built with the necessary approvals and then on expiration of the original approval period, the sites were deemed illegal without any just reason”. In this instance, even though the site is deemed illegal by the site regulator, according to OHMSA it is viewed as legal until such time as a court has decided on its legality.
Off the record, the municipalities tend to agree with this. There is indeed a reasonable expectation that a previously approved site will be reapproved if circumstances have not changed around that particular site, and municipalities may allow a degree of leniency if this is the case.
This is why, as Dave McKenzie, managing director of Boo! Media, says defining ‘illegal’ is contentious. “The status of a site can be fluid in nature. A submission is made to council and the media company is confident it has complied with all aspects of the bylaws, but the mandatory three-month lead time expected from council then lapses. Council may be inundated, but what it means for the media company is that it’s prohibited from earning a living. The site goes live – is it illegal? After two months of going live, the illegal site then becomes legal. Perhaps, in another instance, the council rejects the application, the media company appeals and once again an illegal site then becomes legal,” he says.
There are also costs involved in reapplying for a site. Media owners tend to view this as an exploitative money generator for council that on principle the former would prefer to ignore. Executive chairman of Primedia Out of Home, Steve Ratlou, says: “I have a fundamental problem with the tendering process for individual outdoor billboards. It does not make sense after we identify a site and build a structure that I then have to tender for this space after my licence expires.
“Surely if I meet all the relevant municipal by-laws I can simply reapply for the licence and maintain my site? Instead, what is happening is municipalities are making you tender for a site you owned historically, after the approved tenure of rights expires. They are trying to maximise their revenue stream at the expense of media owners who have made huge investments.”
Ratlou continues: “As it stands, this process doesn’t create fair competition in the sense that people do not go out and identify their own space. Location in our industry is extremely important. Every site has its own unique location and specific advantages.”
Ad Outpost, although a member of OHMSA, has been criticised in the past for its approach to council requirements. However, managing director Max de Jong says: “We have no issues with the laws surrounding the out-of-home industry. What we do have issues with is how councils deal with outdoor operators. On the one side, they apply by-laws very strictly; and the next day they choose to ignore certain fundamentals with another operator. Sometimes interpretation is a problem when, in fact, the by-laws shouldn’t be subject to interpretation.”
Each council – none of which was prepared to respond on the record for this feature – appears to approach the industry differently. McKenzie says Boo!’s approach to working in Cape Town is quite different to how it approaches Johannesburg, for example. “We have the rights to a number of niche ambient media channels where we are not reliant on the city of Cape Town to approve the sites. What we do observe, from the outside looking in, is a bunch of very frustrated media owners operating in Cape Town. The World Cup, in particular, showed up Cape Town as lacking in a creative or open-minded approach versus Johannesburg, which really delivered,” he says.
“Pretoria is very progressive from an out-of-home point of view,” says De Jong. “The council understands this sector is a huge revenue stream for the city. They communicate properly and are timeous. Traditionally, the worst ones to deal with are Durban and Cape Town. Johannesburg is just too big. The council receives a huge amount of applications and they are understaffed. Your best bet is to build relationships and ensure your application is perfect; in other words, easy to process.”
OHMSA’s acting executive director Barbara Cooke says: “There’s no doubt in my mind that many companies, in all good faith, find themselves illegal because city councils can be slow in applications. I agree the reapproval period is also a problem. So it’s legal in that there’s good intent but they’re waiting for the process. Unfortunately, there is not much that OHMSA can do to assist.”
As McKenzie says: “One should be careful not to taint the entire industry with the ‘illegal’ brush. Perhaps a good analogy is to compare it to the property development industry. There are a lot of unscrupulous operators and there are those that comply. Unfortunately, in both sectors, it is incredibly difficult to police everyone.”
This story was first published in The Media magazine.
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