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Home Rulings ETV / DUREX CONDOMS / BEN MADIOPE & ANOTHER / 2018-7353F

ETV / DUREX CONDOMS / BEN MADIOPE & ANOTHER / 2018-7353F

Consumer complaints were lodged against the Respondent’s television commercial for Durex condoms, that was flighted on Etv during March 2018.

The Durex Real Feel commercial shows a man and a woman touching and kissing each other while taking their clothes off. There is music playing in the background, and the voice over says "Now every touch can feel more real with Durex Realfeel, our first condom with the real feeling of skin on skin.”

The display on the screen shows the following statements:
  • "Love sex”
  • "Durex”
  • "Search Durex Realfeel”

COMPLAINT

The First Complainant submitted that the commercial in question was flighted just before 8pm on Monday 5 March 2018 on Etv, while watching Scandal which has an age restriction of 13 years or older. It was argued that the commercial should not be flighted at a time when children are watching, and will arguably "promote sex on children”. The Complainant also noted that the current South African legislation recognises the age of consent to sex is 16 years and older. It was therefore suggested by the Complainants that such a commercial, with adult content, should be shown at later times and during the right shows.

The Second Complainant raised similar issues and indicated that they saw the commercial at just after 8pm on a Friday night. This Complainant also indicated that it was during programming rated 13.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaints Clause 14 of Section II (Children) was considered relevant.

RESPONSE

The Respondent submitted that it has an agreement with Etv in respect of flighting times for the Durex commercials. It was also explained that in terms of this agreement, Etv approves flight times for advertisements, and the Respondent has no input. The Respondent argued that a child viewing Scandal should be educated on safe sex. The Respondent also denied the allegations that the commercial is harmful to children.

In this instance, the Respondent does not appear to be responsible for this flighting time. Therefore, Etv was also given an opportunity to respond to the complaints allegations, and it submitted the following:
  • In terms of the (Children’s Act of 2005 No 38 of 2005) and the Sexual Offences Related Matters Amendment Act, 2007, adolescents above the age of 12 can have access to contraceptives and HIV testing without the need for parental approval.  
  • Scandal falls within the category of Soap Opera. By definition Soapies are episodic works of melodrama broadcast in serial format. It touches on real life events such as relationships and other aspects of human interaction. Soap Operas attract fairly mature audience even though children of certain age groups are permitted and Scandal is rated 13.  
  • The content and themes of Scandal is in line with the commercial.
  • It is worth noting that when scheduling the advert considerations are made about timing and its compatibility with the programme within which it is flighted.
  • The Broadcasting Code permits Etv to broadcast a 13 years age restricted material before the watershed period. 
  • In terms of Etv’s License conditions programming targeting children starts at 14h30 and end at 16h30. Scandal is flighted after the children’s programme period. 
  • The complaints undermine efforts to educate people about HIV prevention.

ASA DIRECTORATE RULING

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

Clause 14 of Section II states, inter alia, that "advertisements addressed to or likely to influence children should not contain any statement or visual presentation which might result in harming them, mentally, morally, physically or emotionally”. The question here is whether or not the commercial is likely to harm children in a manner that the Code seeks to prevent.

The complaints appear to be concerned with exposing children to a sexual message in a manner that they are not ready to receive.

In assessing a commercial’s conformity to the provisions of Code, the Directorate needs to adopt an objective approach and to consider the advertising from the viewpoint of the hypothetical reasonable person. This approach adopts neither an oversensitive nor hypercritical perspective, and takes into consideration relevant factors such as the context and likely audience for the commercial. In addition, this approach should consider the nature and context in which the commercial was flighted.

In the matter Durex Condoms / R C Lindeque / 18811(2 March 2012), the Directorate had to consider a commercial promoting the Durex Real Feel condoms, and it held, inter alia, "According to the flighting schedule submitted, the commercial is flighted no earlier than 20:30 and when this occurred, it was during programmes carrying an age restriction of at least 16.  Given this, the Directorate can safely assume that the audience for this commercial is of an age where open communication regarding sexual issues is appropriate…in this matter the commercial appears to be targeted at person over the age of 16 years who may already be engaging in sexual activity.  The commercial promotes a product that will likely already be familiar.  The images are product-relevant in their portrayal of intimacy. However, they are not overtly sexual.”

In a more recent matter Etv Condoms / S Purdy / 2016-4894F (9 December 2016), where the Directorate had to consider a similar commercial promoting Durex Real feel Condoms which was aired between 20:00 and 20:40, and it held, inter alia, "From www.etv.co.za/movies/family/dinotopia-outsiders it appears that this movie was rated ‘PG13’ for violence. This is significant, because it suggests that small, impressionable children should ideally not be watching this movie unsupervised…The couple are shown in intimate embrace, and they are shown undressing each other until both are in their underwear, but no nudity, not genitals, and no inappropriate positions or visuals are shown. For children who are aware of sex, these images would not cause any undue emotional or moral harm.”

In the matter at hand, the commercial is essentially the same as the one considered in the previous matter. The only difference is that it was aired slight earlier than 20:00, but during a Soap Opera that carries an age restriction of 13 years or older. The Respondent explained that Scandal frequently deals with romantic affairs and the advertisement of this kind would be in line with the themes usually dealt with on the show. 

The Directorate is in agreement. A parent should who is allowing their child to watch Scandal cannot then be outraged when the child is exposed to sexual content or references. It can be assumed that a child of over 13, who is allowed to watch content such as Scandal, should have been exposed to appropriate sexual education to be able to understand the commercial before us. In addition, they should be watching in the company of an adult who is able to explain the content to them if they are confused or disturbed.

The Directorate is satisfied that there is nothing in the commercial that would adversely affect a child of over 13. While true that the commercial promotes a product that is intimately related to sex, it does not do so in an uncouth or overtly sexual manner. The visuals used are not unlike images frequently seen on soapies or in fashion magazines, and is not "explicit” as suggested by the complainant.

The Directorate also agrees with the submissions by Etv that exposure to advertisements for condoms during programming that, by its nature, refers to romance and sex is highly appropriate in the face of the imperatives of HIV education.

As such, the commercial is not found to be likely to cause harm to children, and is therefore not in contravention of Clause 14 of Section II of the Code.


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