The Supreme Court of Appeal’s ruling that ARB can consider the advertising of members and non-members alike is a win for consumer protection.
The court confirmed that the Advertising Regulatory Board is entitled to consider the advertising of non-members, and issue decisions on adverts created by agencies and brands that don’t belong to the industry body, for the guidance of its members.
The Supreme Court of Appeal handed down the decision in April 2022 followed a protracted litigation starting with Bliss Brands bringing a review application before the High Court, resulted in the High Court making a finding that the jurisdiction of the ARB was “unconstitutional”, and coming to the comprehensive decision handed down by the Supreme Court of Appeal, confirming the ARB’s right, and the rights of its members, to make decisions about the advertising of non-members.
Unfortunately, the battle is not yet over, as Bliss Brands has applied to the Constitutional Court for Leave to Appeal, and the decision on that application is still pending. The ARB will continue to strongly defend its right to protect consumers from all misleading and otherwise harmful advertising.
The decision confirms the constitutionality of clause 3.3 of the ARB Memorandum of Incorporation that recognises that while it does not have jurisdiction over non-members, it may make decisions on the advertising of non-members for the guidance of its members and broadcasters.
This has been a long, hard road but we have been driven by the knowledge that our work is a vital part of consumer protection in South Africa. Our enormous thanks go to our legal team: Matthew van der Want (Fairbridges Wertheim Becker), Adv Steven Budlender, Adv Nick Ferreira, Adv Katherine Harding and Adv Karabo Mvubu. This team continues to work tirelessly to save self-regulation of advertising in South Africa.
Sadika Fakir, chairperson of the ARB Board, says the decision is important not only for the ARB but for all self-regulatory and voluntary bodies, as the Court recognised the right of association that is exercised when entities join a self-regulatory association. But mostly, this victory is a victory for consumer protection, which is the driving force behind the work of the ARB.
The decision even garnered international praise with Sibylle Stanciu-Loeckx, director of the International Council for Advertising Self Regulation, saying it was a victory for self-regulation. “The principles in this decision that uphold the freedom of expression and the right of an industry to self-regulate in the public interest, are important principles for self-regulation all over the world,” she says.
Gail Schimmel is an admitted attorney with four degrees to her name. She is currently the CEO of the Advertising Regulatory Board. Schimmel has published five novels, most recently The Accident and Two Months. She lives in Johannesburg with her husband, two children, an ancient cat and two very naughty dogs.
Key takeaways from the judgment
1. “The ARB’s MOI and Code, incorporating its Procedural Guide, constitute empowering provisions. The mere absence of a statutory source for these powers is therefore no barrier to the ARB validly exercising public functions. To hold otherwise would invalidate the actions of all other private bodies that perform vital public functions in the public interest, without any empowering statute, such as sports professional bodies, the Press Council, professional associations and the like.”
2. “… the ARB is entitled to consider, on behalf of its members, complaints in respect of advertisements published by non-members of the ARB, so that its members may make an election whether or not they wish to publish that advertisement. This is an incident of their constitutional rights to freedom of expression and association.”
3. “The ARB’s members are entitled to refuse to publish advertising as part of their right to freedom of expression in s16 of the Constitution, a right recognised in international law.”
4. “The ARB’s power to consider complaints relating to advertisements by non-members for the benefit of its own members, advances the right to freedom of association. The Constitutional Court has held that the right of association, ‘enables individuals to organise around particular issues of concern’ and permits a group ‘to collectively contest and ameliorate the structure of social power within its midst’. This is precisely what the members of the ARB have done.”
‘A watershed win for consumers’
Andrew Papadopoulos, partner at KISCH IP attorneys, shares his observations on the ruling.
This is a watershed judgment. Not only does the judgment underscore the right to self-regulation to retain the ability to prevent advertisers from cutting corners and unlawfully imitating their competitors’ advertising, but it is also a win for consumers to have a voice when they believe advertising is not decent, honest or truthful, or is contrary to a basic level of societal standards.
With this judgment, the SCA affirmed the ARB as the industry-established advertising watchdog to regulate advertising for the benefit of responsible marketers and media owners alike, and to protect consumers from unscrupulous advertisers.
The ARB has industry-specialised knowledge, the resources to adjudicate the hundreds of complaints (the vast majority of which are from consumers), and can hand down decisions within just a few weeks of a complaint being lodged.
The SCA also held that the ARB’s processes for considering advertising complaints are fair.
When it comes to the right of access to courts, the SCA held that as with any completed administrative process that adversely affects a person’s rights, a dissatisfied person may approach a court to review decisions taken by the ARB’s adjudicative bodies. As for Bliss Brands’ argument that the ARB lacks independence due to its funding model, the SCA held that there was no evidence to support this allegation.
