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Home Rulings DSTV “NEW CONTENT” / A JOB / 2017-6707F

DSTV “NEW CONTENT” / A JOB / 2017-6707F

Ms Job lodged a consumer complaint against the Respondent’s television commercial promoting "new content” on its channels.

The material submitted promotes Mom Season 3 on Comedy Central and the voice-over says: "Mom 3 brand new season, Tuesday only on Comedy Central”.

COMPLAINT

The Complainant submitted that the Respondent advertises "new content” when it is old content that is being repeated for the umpteenth time. As an example, she referred to advertising for "brand new episodes” of Mom that are in fact repeats. The Complainant further pointed out that the advertisement for a "brand new series of Doc Martin” was also recycled content.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint Clause 4.2.1 of Section II (Misleading claims) was taken into consideration.

RESPONSE

The Respondent submitted that it is of a view that the ASA does not have jurisdiction over this complaint as it relates to programming publicity. In the event that the ASA is of the view that it has jurisdiction, it submitted that the promos were not misleading.

The Respondent submitted that "Mom” is an American sitcom that premiered on September 2013 in the US where 5 seasons have been broadcast already. In South Africa it has previously been aired on M-Net channels. The promo was announcing the sitcom to a different Channel, this time Comedy Central, where it was going to feature for the first time. Although it previously aired on DStv M-Net channels, it is new to Comedy Central. Furthermore, M-Net is not accessible to Compact Plus subscribes and therefore they would not have watched the sitcom. 

ASA DIRECTORATE RULING


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

In considering this matter, the Directorate notes that the Complainant’s real issue is with the Respondent’s practice of promoting programming that has been aired on one or more channels as "new” on another channel. The Directorate cannot, however, making a ruling on a practice. It can only rule on a specific piece of advertising or claim, as each piece of advertising or claim has a very specific context. The "Mom” example is therefore considered for the purposes of this ruling. The parties can then apply the principle to other material.

The first question to be answered is whether or not this material constitutes an "advertisement” within the meaning of the Code. The respondent contends that it falls under "programming publicity” and is therefore not advertising.

Clause 4.1 of Section I defines an advertisement as follows:

"advertisement means any visual or aural communication, representation, reference or notification of any kind –
  • which is intended to promote the sale, leasing or use of any goods or services; or
  • which appeals for or promotes the support of any cause.

Promotional content of display material, menus, labels, and packaging also fall within the definition. Editorial material is not an advertisement, unless it is editorial for which consideration has been given or received.

It adds that "The word ‘advertisement’ applies to published advertising wherever it may appear. It does not apply to editorial or programming publicity”. (our emphasis)

In Etv "Vote With Your Remote” / SABC / 1127 (FAC) (20 February 2004) the Appeal Committee concluded that "…a proper interpretation of the phrase, programming publicity, having regard to inter alia, the surrounding circumstances such as the purpose of the Code and the ordinary meaning of the words is publicity given to a program. It would thus relate to details such as the time, place or venue when a program was to be shown which matters would generally be in the public domain.  If this were not so it would mean that in publishing publicity about a program one could breach several provisions of the Code such as filching ones original work without any sanction being applicable.  This could never have been the intention of the parties.”

Similarly, in this matter, it cannot have been the intention of the Code that misleading claims could be inserted over programming publicity, and fall out of both the jurisdiction of the ASA and the Broadcasting Complaints Commission (BCCSA). The Directorate is therefore of the opinion that although the material in question is in the most part simply promoting the programme in question, it is crafted in such a way that it goes beyond the limit of just promoting the programme. In particular, it makes the claim "new season”. This claim goes beyond the ambit of what the BCCSA would consider and therefore falls into the realm of advertising claims. The Directorate is therefore satisfied that in relation to the claim in issue, the material falls within the definition of advertising as reflected in Clause 4.1 of Section I.

The Directorate is therefore satisfied that this claim falls within the definition of an "advertisement” as defined by the Code.

The only remaining question is whether or not it was likely to mislead consumers in the manner alleged by the complainant.

Clause 4.2.1 of Section II states that "Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer”.

The Complainant argued that the Respondent advertises "Mom” series as new content while it is old. The Respondent conceded that the series was first aired in 2013 and it has previously been aired on M-Net channels.

The question therefore becomes whether the fact that it is new to Comedy Central allows it to be labelled as "brand new season”.

The Directorate notes two things. 

In the first place, the claim is not simply "new” but "brand new”. On www.oxforddictionaries.com, "brand new” is defined as "completely new”. One would not expect the label "brand new” to be applied to a show that has been available in South Africa since 2013. 

In the second place, the claim makes no reference to the channel. It does not say, for example, "brand new on Comedy Central”. It states simply "Mom 3 brand new season” and only then "Tuesday only on Comedy Central”. The words "only on” further aggravate the matter. By making this statement, the implication is that this is the only channel to ever air this "brand new” season. In fact, these old seasons have been aired on at least one other channel, if not more. They are also, most likely, available as DVDs.

Given this, the Directorate is of the opinion that the claim, "Mom 3 brand new season, Tuesday only on Comedy Central” is misleading and in contravention of Clause 4.2.1 of Section II of the Code.

The respondent is therefore instructed to:

1) Withdraw the claim from its advertising.

2) Immediately action the process to withdraw this claim upon receipt of this ruling.

3) Ensure that the claim is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

4) Refrain from using the claim again in its current format.

The complaint is upheld.




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