OPINION: It has always been a mystery to me why no advertiser has ever had the courage to stand up to the Advertising Standards Authority (ASA).
Earlier this month, a high court ruling saw the advertising regulator, the Advertising Standards Authority of South Africa (ASA) prohibited from ruling against advertisers who were not members of this self-appointed industry watchdog.
An even greater mystery is how, for decades, the print media industry has been so myopic and tolerant of the ASA costing them millions by banning advertising. Admittedly, some advertising needed to be banned but most, in my opinion, were bans based on very flimsy objections from a tiny minority of consumers who actually found it extremely easy and free of repercussions to complain about advertising.
The classifieds question
And that, of course, was only about ads placed by companies and not ads placed in the classified section, for example, by individuals offering clearly nefarious services and blatant prostitution. Why the ASA has never had any jurisdiction over these ads is yet another mystery.
But, back to the print media industry. What has been happening is that newspapers and magazines would receive an ‘Ad Alert’ from the ASA with instructions to remove advertisements. This was usually sent to someone fairly junior in the advertising administration department who would withdraw the advertising without question.
Newspaper management, as far as I can tell, never knew this was even happening in most cases, despite the fact that it meant millions of rands disappearing from their order books.
Quite mystifying, given the amount of effort newspapers and magazines placed on trying to get new advertising in an extremely tough market while at the same time not really noticing that the bucket they were desperately trying to fill was actually leaking right under their noses.
Ever deepening hole
The fact that roughly two weeks after this High Court ruling was made, the ASA had not yet responded to questions put to them by The Media Online, speaks volumes.
Frankly, it is going to be quite hard to work out quite how the ASA is going to dig its way out of this ever deepening hole. I would expect them to appeal, but I am not holding my breath that this will do them any good because this recent ruling is not in the least bit complicated and entirely logical given the standing of the ASA in terms of who and who it cannot rule against.
It is interesting also to see the court ruling against the ASA charging of quite large “appeal fees” to non-members and one wonders whether those non-members who have been charged these fees in the past will seek some form of recompense.
On top of that there are still some cases against the ASA waiting to be put on the high court roll.
Judge and adjudicator
Interestingly, one would have thought that the advertising industry itself, or at least the media industry, would have been at the forefront of preventing the ASA from playing sole judge and adjudicator. For presuming guilt before trial and charging excessive fees to advertisers while not in any way holding those who complained liable for anything in spite of having their complaints turned down.
The fact that the company they were complaining about spent fortunes in legal fees, time and effort, did not occur to the ASA when politely informing complainants that their objection had been turned down. And then tacitly encouraging them to keep complaining.
At one stage a few years ago, 75% of the complaints against the entire mobile phone industry came from one individual who seemed to derive far more pleasure complaining about ads than doing the daily crossword.
The ASA has a history of making the most ludicrous judgements.
But, while the ad industry, which complains bitterly to journalists when the ASA rules against them, has been all bark and no bite, it has been left to a conscientious lawyer called Saul Shoot to take up the cudgels on behalf of a number of clients to slowly grind away at the layers of excuses and obfuscation proffered by the ASA.
Appeal fees
When it was formed decades ago now, the ASA made a lot of sense. It was an organisation with a board populated entirely by the advertising agency industry and media representative bodies.
For the past few years it has been taken over by lawyers with one or two, in my opinion, token representatives from the ad industry.
The ASA has consistently tried to get itself installed as part of the Consumer Protection Act but has been turned down. It has had to raise funds to keep going by charging all manner of fees, such as “appeal fees.”
Only a few months ago, it was clear that the organisation has lost so much funding support from the media and advertising industries, that it was in dire straits.
Of course, just like the apartheid government used to keep in power by warning about the ‘Rooi Gevaar’ the ASA trots out the spectre of government taking over the regulation of advertising should the ASA disappear.
Thorny task
Which, if course is nonsense, because effectively, the government has been perfectly entitled to interfere in the advertising industry by way of legislation that has been around for decades.
Quite apart from which, I cannot imagine that anyone in government would want to take on this thorny task.
What needs to happen is that advertising regulation needs to go back to self-regulation.
The lawyers need to be put out to pasture and the ad and media industry should be allowed to control themselves with oversight by independent and non-media or ad industry affiliated experts. Pretty much like the Broadcast Complaints Commission, which I have always believed is efficient and very professionally run.
Unlike the ASA, which makes it far too easy for consumers to complain, the BCCSA has structured its process to ensure that ludicrous complaints do not take up valuable time and effort and that a fair hearing is given to both parties and then taking action, only after a ruling is made.
Advertising regulation is important. But, it needs to be equitable and fair.
The high court ruling two weeks ago was an important step, in my opinion, along the way to it becoming fair and equitable again.
Follow Chris Moerdyk on Twitter @chrismoerdyk.
Image: Thembi Msibi, CEO of the ASA
