The Advertising Standards Authority of South Africa hasn’t conducted a review of its Code of Advertising Practice in a while, busy as it’s been dealing with business rescue and getting back on a sustainable track.
ASA CEO Gail Schimmel says, it would have been pointless for a review to take place, which is quite an intensive process, if the organisation was going under. “Now I am confident that we are going to survive and the review is definitely going to look at those things that are supposed to be happening, and it’s a good time to be refreshing the code to reflect what the industry wants,” she adds.
Why the review is important
“The Code is supposed to be a dynamic, changing creature,” Schimmel explains. “The code is supposed to be something that keeps up with industry, that changes with industry needs.”
Proposed changes are received from the broader industry, ASA members and internally. These are then discussed internally and recommendations made, which are passed on to a Code Review Committee, comprising members of the ASA board on a sub-committee. If the committee accepts the changes, they go to an external lawyer and are then finally presented at ASA’s Annual General Meeting for approval.
Areas of concern
Asked which sections of the Code will definitely receive recommendations, Schimmel says it’s difficult to predict they’re still the early stages of the process. But, she adds, “I personally want to revisit the clauses on discrimination and gender. I think that they are outdated and don’t reflect the way we think about those issues anymore. If we don’t receive an external recommendation on those clauses, I will be making a personal recommendation on those.”
Marketing and media analyst, Chris Moerdyk, has one particular bugbear with the Code, which he hopes will be addressed and corrected in the review.
“Any single consumer can complain about an advertisement and set in motion a process that can be extremely costly to the advertiser. If the advertisement is found to be in breach of the Code the advertiser may appeal, but to start the appeal calls for the deposit of a considerable amount of money. Should the ad be found to be within in the ASA code the consumer who complained is simply thanked with absolutely no recourse. I believe the complaint process needs to be overhauled to ensure that no single consumer can create the kind of havoc that has been the case in the past and which led to all the litigation,” he explains.
He calls for the current principle of guilty until proven innocent to be changed and says this could be avoided if the parameters for consumer complaints are tightened up.
“I believe that no single consumer should be permitted to complain about an advertisement on behalf of his or her 50 million fellow consumers. Complainants should be required to submit bona fide signatures of at least 20 others before a complaint can be addressed. In the past too many individual complainants have made use of the simple complainant’s procedure purely for their own entertainment.”
Since the Code is based on international principles, it is highly unlikely there will ever be a fundamental change to it. It’ll simply be a reworking of clauses, or an adding or taking away of them. It will be interesting to see if Moerdyk’s gripe is resolved in this review.
Industry specific engagements are also being done by the ASA, with the telecommunications sector already having indicated they believe a new clause and/or appendix needs to be inserted.
How effective is ASA’s enforcement of the Code?
Questions have arisen in the past about how much power the ASA really has in enforcing industry regulations. “We are a reactive organisation so we only act on complaints,”Schimmel admits. “We are dependent on consumers or marketers to pick up the problems and bring them to our attention”.
But she defends this position by explaining that it is the only fair system possible and it’s based on international best practice. Monitoring everyone equally fairly would require a massive workforce and with the ASA being in business rescue, that is a pipe dream.
For Moerdyk, ASA’s enforcement has never been in doubt. “I believe that in the past the ASA has vastly exceeded its mandate on enforcing the code.”
Light at the end of the tunnel
Having recently launched a direct funding model, the ASA is starting to regain its financial footing. “We have a responsible marketing community. When I come to them and ask them to fund the ASA, on the whole, they are coming to the party. They are recognising the need for self-regulation, they want self-regulation and they are putting their money where their mouths are,” says Schimmel.
The business rescue plan initially recommended a levy funding model, but the ASA soon found that marketers, for a number of reasons, said this was not feasible. “The direct funding model is not the ideal model, there are a number of issues around it, but it’s the model that the industry wants … We want to move from being an arrogant organisation to one that serves this industry,” explains Schimmel.
There are two steps that the ASA still needs to complete for the organisation’s situation to drastically improve. Firstly, a bulk upfront payment that will allow the ASA to pay off its legacy debt would be greatly beneficial, and secondly, getting the direct funding model completely set up to fund the day-to-day running costs is a priority.
“We are seeing the light at the end of the tunnel. I never want to give a definitive answer as you never know what the world is going to throw at you. But I am more confident than I have ever been in the past,” Schimmel says.
Moerdyk applauds Schimmel’s appointment to lead the ASA and hopes with her at the helm, things will be different for the body. “This review is clearly her initiative … I hope that under Schimmel’s leadership the ASA will become a fair and honest arbiter of advertising in this country and return to being an industry self-regulatory body and not an organisation run by lawyers as it was in the immediate past.”
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