The South African Advertising Standards Authority of South Africa (ASA) has applied to be recognised as an ombud for the industry. This would make it a recognised statutory body in terms of the Consumer Protection Act (CPA).
Fred Makgato, head of legal and regulatory affairs at the ASA, says the move will give it powers to enforce rulings. “We currently are not playing an ombud role as the current system is voluntary. An ombud established in terms of an empowering legislation has statutory powers to enforce its finding. Our voluntary system’s enforcement of rulings is through co-operation by members,” he says.
“The new dispensation under the Act provides various avenues within which to enforce the rulings as the Code will assume a Regulation status. Compliance with the Code will become compulsory nationally.”
Makgato says the ASA, together with other stakeholders, participated in the consultative process when the Consumer Protection Bill was published for public comment. “We campaigned for recognition of self-regulatory bodies through legislation; hence, the inclusion of Section 82 in the Act dealing with recognition of Industry Codes and Ombuds. The application for accreditation is in compliance with the provisions of the Section 82,” he says.
Gail Schimmel, an advertising law expert at Clear Copy, has welcomed the move. She says it’s “not only desirable, but vital that this occurs”.
“It will give the ASA more teeth – especially over rogue advertisers who claim the Code does not apply to them. It will ensure that we continue to have ONE regulatory body for advertising. The danger of the ASA NOT getting this status is that advertising may then be regulated by another body or by the consumer tribunals – creating a dual system which is not practical,” Schimmel says.
She believes it will “ensure that advertising regulation remains in the hands of the industry (at least theoretically – whether the industry participate properly is a whole other topic).
“It may create an additional funding source for the cash-strapped ASA (although their application implies otherwise!).”
The ASA says official recognition from the department of trade and industry (dti) will confirm “the fact that the industry is able to self-regulate and the dti has confidence in that system”, Makgato says. “The industry will also acknowledge that is has the backing of the dti, which is very important. The industry understands that the public often prefer legislative powers and this process is a balancing act that is necessary to cater for South Africans.”
Notice was published on 22 March 2013, giving the public and interested parties the chance to comment. The National Consumer Commission will then “interrogate comments received, and if necessary engage with ASA and other stakeholders. Thereafter, the Commission will submit its recommendations to Minister”, Makgato explains.
The Media Online is aware of at least one objection to the proposal, that calls it “ill-founded and inappropriate”. According to legal documents in our possession, some of the objections levelled at the ASA included that it has “made material misrepresentations to the public of South Africa and extracted funds from persons who are neither its members nor members of the industry it purports to regulate, namely the advertising industry under false pretences”. It says there is high court action pending against the ASA and that there is already an interim order of the high court prohibiting the ASA from sanctioning this particular company, which can’t be named under the sub judice rules.
But it calls the ASA’s application “incomplete, inaccurate and incompetent”.
A source in the print media industry, who prefers to remain anonymous, told The Media Online that while most members of the sector believe the organisation should have ombud status, they are concerned over the current management of the ASA and a perceived lack of will to address the challenges facing the industry.
The print media, the source said, under attack by government and threatened with a media appeals tribunal, took on the issue, and made a real effort to address the concerns raised. “We took ownership of our problems,” the source said. “But the ASA refuses to listen, particularly to its funders. It prefers to play politics rather than look at issues such as organisational efficiencies and budgets that concern some of its stakeholders.”
The source said the print media supports an ombud scheme because it supports self-regulation. “That’s fine when you’re dealing with a competent organisation. Which I’m not convinced we are.”
What then of the Association for Communications and Advertising (ACA), the body empowered represent “companies in this profession to government, media and the public. It is a voluntary body formed both by, and for the industry, focused on and committed to self regulation, and to defend the highest standards of ethical practice”?
Despite repeated attempts for comment from CEO Odette van der Haar, The Media Online was unable to canvas the views of the advertising industry through its representative body. Nor did the Marketing Association of South Africa respond to request for comment.
But Makgato says the ASA’s stakeholders support the move to o regulate the entire advertising and marketing communication industry in South Africa. “An ombud is a structure and the structure is in place. The ASA’s application is two-fold: one is for accreditation of the Codes and the other is for accreditation of the ASA as an ombud scheme,” he says.
“All our stakeholders support the process. Since 2008 when the Bill was published, our members were informed about the process and there was never any objection. Members have a right to their concerns at the AGM and none of our members raised any objections or concerns at the AGM.”
Paul Jenkins, non-executive chairman of Caxton, says there is a huge amount of politicking in the advertising industry. “And nothing is ever perfect. I think the ASA has been around for a very long time and it has built up a body of precedents, knowledge, and intellectual capital. It has an established brand. It is a self-regulatory body, and seeks some teeth. It is never going to please everyone, and given that one of its major functions is dispute resolution, in every case, 50% of the people will be happy and 50% will be unhappy,” he says.
Jenkins asks, “Without the ASA, who is going to ensure fairness in advertising? I believe they are doing a good job, and would support giving them some more teeth to enforce fairness in advertising. It is a better alternative than going to court.
“At least they have the balls to stand up to the biggest media owner in the country, and decide cases on merit. So we should be working to improve them and support them, not look for the weak points only,” he says.
As Schimmel says, the establishment of an advertising ombud won’t change a thing for ethical advertisers, as they will continue to abide by the Code and the ASA rulings. But, she says, the rogue advertiser “may find themselves less able to escape the reach of the ASA, and the ASA may find it has access to more formal methods of enforcement against these advertisers. For example, there may be scope to make an ASA ruling an order of court where necessary”.
