Nandos / K Ngqula / 13290
Ruling of the : ASA Directorate
In the matter between:
Mr Khayakhulu Ngqula	Complainant(s)/Appellant(s)
Chickenland (Pty) Ltd t/a Nandos	Respondent

08 Apr 2009

Billy Gundelfinger attorneys, on behalf of the complainant, lodged a complaint against a Nandos advertisement that appeared in The Sunday Times on 15 March 2009.

The advertisement reads as follows:

“Chicken or beef Mr Ngqula? We suggest chicken. Peri-Peri chicken”.

COMPLAINT
In essence, the complainant, the previous CEO for South African Airways (SAA) submitted that the advertisement comes subsequent to substantial media coverage alleging that the complainant’s wife obtained a tender through her association with the complainant.

These allegations are false and have been publicly retracted. Despite this, however, the advertisement was placed without the complainant’s prior knowledge or consent. It is clear that the undertone of the advertisement implies that the complainant rendered himself of improper and dishonest conduct, and as such is highly defamatory and prejudicial to the complainant’s good name and reputation.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 11 of Section II (Protection of privacy and exploitation of the individual) was taken into consideration.

RESPONSE
Attorneys Bouwers Inc. on behalf of the respondent, submitted that the advertisement chooses a widely publicised societal issue as its theme and delivers no comment on the activities of the complainant or any of the media coverage relating to the issue. As such, it cannot be argued that the advertisement is defamatory or supports any negative allegations. Public figures, such as the complainant, enjoy a much lesser degree of privacy than ordinary individuals, as can be seen from the extensive media coverage on the complainant’s departure from SAA.

While there is interplay between the reference to the respondent’s product (chicken), and the complainant’s reluctance to “face the music”, also commonly referred to as being chicken, this humour relates to actual events, and cannot be said to be defamatory. The respondent also pointed out that its tendency to make use of social commentary in its advertising is well documented with the ASA.

It is trite that advertising has to be assessed as a whole and viewed objectively from the viewpoint of the hypothetical reasonable person. Such an interpretation does not allow for the subjective views of individuals, and must bear in mind that advertising often contains innuendos and should be viewed with the proverbial “pinch of salt”.

Taking these factors into consideration, it is not reasonable to infer that the advertisement implies any wrongdoing or guilt. It is simply a humorous interplay on a current affair.

ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.

Clause 11 of Section II reads as follows:

“ Advertisements should not, except in the circumstances noted in 11.2 portray or refer to, by whatever means, any living persons, unless their express prior permission has been obtained...”

Clause 11.2 of Section II lists four exclusions to the above rule. The exclusion that potentially applies in this matter reads, “This ruling does not apply- … to occasions when in the ASAs opinion the reference or portrayal in question is not inconsistent with the subjects right to a reasonable degree of privacy and does not constitute an unjustifiable commercial exploitation of the individuals fame or reputation”.

It appears common cause between the parties that the “Mr Ngqula” referred to in the advertisement can only be the complainant. As such, the Directorate is tasked with determining whether or not this reference constitutes an unjustifiable commercial exploitation of his reputation.

In this regard, it is firstly noted that the “hype” around the complainant’s wife’s tender, and the complainant’s subsequent departure from SAA, were as a result of extensive media coverage. Accordingly, at the time that this advertisement appeared, the public were arguably well informed and aware of the allegations. While this might potentially affect the reader’s subjective interpretation of the advertisement, the phrase “Chicken or beef Mr Ngqula? We suggest chicken. Peri-Peri chicken”, clearly does not impose guilt on the complainant.

If anything, it is delivering witty commentary on a well-publicised topic. The Code clarifies that the prohibition on referencing actual people does not apply when the portrayal is not inconsistent with that person’s right to a “reasonable degree of privacy” and does not constitute an unjustifiable commercial exploitation.

From the material at hand, it is clear that the complainant’s dispute and alleged wrong-doing was well documented and reported in various media, which arguably lowers his entitlement to complete privacy. In fact, the Directorate is satisfied that, provided that the commentary remains neutral and non-accusatory, it cannot be said that a reference to the complainant or even the allegations levelled against him and his wife transgress his “reasonable degree of privacy”.

The commercial uses a well-known phrase often associated with airhostesses, “Chicken or beef” to refer to, and make light of the substantial media hype around the complainant’s dispute. It does not, however, deliver verdict or imply that the complainant or his wife are guilty.

In Lions Rugby / CA Price / 648 (15 July 2005) and DSTV / PM Stevens / 11270 (28 August 2008), the Directorate received complaints from unknown members of the public that they had been featured in the relevant advertising without their consent. In both instances, the parties requested to be removed from the advertising, and in both instances the Directorate instructed the advertisers to comply with this reasonable request.

In contrast with the above matters, however, this is not a case where the complainant is an unknown member of the public who suddenly finds his personal life exploited by a commercial entity without his consent. These rulings were made under the provisions of Clause 11.2.1 relating to crowd or background shots, which does not apply to the current complaint.

The complainant and his dispute with SAA are public knowledge, and it would be inequitable for the Directorate to prevent an advertiser from referencing public issues. Advertising in general frequently draws inspiration from, inter alia, societal and public issues, and it is not unjustified for the respondent to refer to the complainant’s dispute in this tongue in cheek matter, without delivering any verdict.

The Directorate is satisfied that the advertisement does not unjustifiably conflict with the complainant’s reasonable degree of privacy.

Accordingly, the advertisement does not contravene Clause 11 of Section II of the Code.

The complaint is dismissed.