Advertising law can be pretty mundane: did the company advertising its product exaggerate a tad, did it copy a competitor’s adverting material, did it diss a competitor? But within the space of one week there have been two decisions that show that advertising law also deals with issues of national importance. Gaelyn Scott unpacks two interesting decisions.
The first was the decision of the Supreme Court of Appeal handed down on 20 June 2012 in the case of BAT v Minister of Health and National Council Against Smoking, and it dealt with the ban on tobacco advertising. This ban is contained in section 3(1) (a) of the Tobacco Products Control Act 1993, which reads: ‘No person shall advertise or promote, or cause any other person to advertise or promote, a tobacco product through any direct or indirect means….’. The word ‘advertise’ is defined as follows: ‘any commercial communications or action brought to the attention of any member of the public and in any manner with the aim, or effect, or likely effect of promoting the sale or use of any tobacco product …And the word ‘promote’ is defined as ‘the practice of fostering awareness of and positive attitudes towards a tobacco product…for purposes of selling the tobacco product or encouraging tobacco use, through various means, including direct advertisement, incentives, free distribution, entertainment, organised activities…’
Pretty comprehensive then! But, said BAT, the ban can’t stop a tobacco company from conducting one-to-one communications with adult smokers, for example by sending them information on packaging changes, brand migrations, product development, product launches and the like. Why not?
Well, argued BAT, because that would amount to an undue limitation of the right of freedom of expression set out in section 16 of the Constitution, which covers both the freedom to impart information and ideas and the freedom to receive them. In other words, it would trample on not only BAT’s right to impart information, but also on the rights of smokers to receive information of interest to them. What BAT was asking for, in effect, was an order declaring its understanding of the law to be correct.
The deputy president of the Supreme Court of Appeal, Judge Mthiyane, delivered the judgment. He referred to the fact that Section 36(1) of the Constitution provides that any constitutional right can be limited by a law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account relevant factors, including the nature of the right, and the nature and extent of the limitation.
The judge said that there must be a balancing exercise on the basis of proportionality, which in this case involved balancing the right of smokers to receive information about products against the government’s obligation to take steps to protect its citizens from the hazardous and damaging effects of tobacco use.
And he said that a limitation can be reasonable even if there isn’t clear proof that it will be effective, because in the 2005 Constitutional Court case of Minister of Home Affairs v Nicro & Others, Chief Justice Chaskalson said this: “If the concerns are of sufficient importance, the risks associated with them sufficiently high, and there is sufficient connection between means and ends, that may be enough to justify actions taken to address them.”
Judge Mthiyane applied the law to the present case as follows: “In my view this is a classic example of a case in which matters of fact and policy and intertwined… There are powerful public health considerations for a ban on advertising and promotion of tobacco products… South Africa also has international law obligations, and this has been the practice in many other open and democratic societies. They have accepted the link between advertising and consumption as incontrovertible and have imposed restrictions on the advertising and promotion of tobacco products.”
He went on to say, “The right to commercial speech in the context of this case is indeed important. But it is not absolute. When it is weighed up against the public health considerations that must necessarily have been considered when imposing the ban on advertising and promotion of tobacco products it must, I think, give way. The seriousness of the hazards of smoking far outweigh the interests of the smokers as a group…. smokers are not a monogenous group. Amongst them are those that are trapped in the habit and wish to get out of it. There are also those who have given up and would not like to relapse into the old habit of smoking again…The impugned prohibition is aimed at discouraging all tobacco users, without exception, in the interests of public health.”
The judge concluded by saying that it wasn’t possible to carve out an exception in respect of consenting tobacco users: “In the circumstances a blanket ban on advertising and promotion is, to my mind, the only way to address the issue.” The limitation of the right of freedom of expression was therefore reasonable and justified, and the prohibition on tobacco advertising was valid.
The second decision was the ASA ruling of 15 June 2012 in relation to the Nandos’ ‘Xenophobia’ ad, the TV ad that all the channels banned. For those of you who haven’t seen it on YouTube, it went like this: visuals of a border fence with the word ‘Immigration’, followed by various people of different hues, with each one disappearing in a puff of smoke; a voice-over that says, “You know what’s wrong with South Africa? All you foreigners…You must all go back to where you came from…you Cameroonians, Congolese…Europeans, Indians, Chinese… Afrikaners, Swazis…Vendas, Zulus, everybody”. Then there’s a visual of Khoisan man standing alone who says, ‘I’m not going anywhere. You s#$*% found us her.” The voice-over concludes, “Real South Africans love diversity. That’s why we’ve introduced more items…”
A consumer took the ad to the ASA claiming that it incited xenophobia and therefore contravened the ASA Code’s prohibitions on offensive advertising and discrimination.
The ASA made short shrift of the complaint. It drew parallels with the Charlize Theron ‘Real Men Don’t Rape’ ad of a few years back, where the ASA Final Appeals Committee found that it was ‘deliberately hyperbolic to draw attention to a pressing social issue, thus justifying the statement and the commercial.’ It went on to hold that the Nandos’ ad was obviously ironic, falling ‘within the parameters of hyperbole and/or harmless parody’ allowed for by the Code. This, coupled with the ‘Real South Africans love diversity’ bit, made it quite clear that the message was in fact diversity rather than xenophobia.
Sensible decisions all round!
Gaelyn Scott is director and head of ENS’ IP department (firstname.lastname@example.org)
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