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Home Rulings LUVLAND / NICOLA VAN STADEN AND OTHERS / 2018 - 7238F

LUVLAND / NICOLA VAN STADEN AND OTHERS / 2018 - 7238F

BACKGROUND

In Luvland / Nicola van Staden and others / 2018-7238F (12 February 2018) ("the February Ruling”) the Directorate accepted the Respondent’s voluntary undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised and on condition that the material is not used again in the current format in future.

The advertising showed a model from the rear view, from waist to knees only, wearing black underwear holding what appeared to be a pink dildo in her left hand.  

The Respondent’s attention was also drawn to the provisions of Clause 15.5 of the Procedural Guide, which effectively required it to withdraw the offending material from any and all media in which it may appear.

SUBSEQUENT TO THIS RULING

Another Complainant, not party to the original dispute (Mrs Fiona Mavhinga), lodged a consumer complaint against the Respondent’s roadside trailers advertising of Luvland at the corner of Witkoppen Road and Hyperion.

The Complainant submitted that to have Luvland placing its erotic advertisements at this corner is grossly inappropriate as lot of children pass by thereat due to the fact that there are schools (primary and secondary) nearby.

The advertisement is the same as that considered in the February Ruling, and as such this complaint was treated as a breach complaint.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

Given the previous ruling and the fact that the current complaint appeared to relate to the same or a substantially similar material, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account

RESPONSE

All reasonable attempts were made to elicit a response from the advertiser, but none was received. The ASA Directorate therefore had no other option but to rule on the matter based on the information it had at its disposal.

ASA DIRECTORATE RULING

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

Jurisdiction

In The Advertising Standards Authority v Herbex (Pty) Ltd (902/16) [2017] ZASCA 132 the Supreme Court of Appeal found, inter alia, that:

1.1 the Advertising Standards Authority of South Africa (the ASA) has no jurisdiction over any person or entity who is not a member of the ASA and that the ASA may not, in the absence of a submission to its jurisdiction, require non-members to participate in its processes, issue any instruction, order or ruling against the non-member or sanction it;
1.2 the ASA may consider and issue a ruling to its members (which is not binding on non-members) on any advertisement regardless of by whom it is published to determine, on behalf of its members, whether its members should accept any advertisement before it is published or should withdraw any advertisement if it has been published.

In addition, section 55(1) of the Electronic Communications Act 36 of 2005 gives the ASA the authority to consider complaints in respect of any advertisement broadcast by a broadcast service licensee.  

The ASA will therefore proceed to consider this matter for the guidance of its members.

Merits

Clause 15.1 of the Procedural Guide states that "The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.

The essential question before the Directorate is whether or not the Respondent’s advertisement is in breach of the original ruling. For this to be the case, the Respondent would have to be making the same, or materially similar claims to those originally complained of, or using the same advertisement.

The picture of the roadside trailer sent with the new complaint is exactly the same as the one previously ruled against. It showed a model rear view, from waist to knees only, wearing black underwear holding what appeared to be a pink dildo in her left hand.  

It would therefore appear that the advertising is still in use, despite the ruling.

A key consideration in such matters is what action the Respondent took to ensure compliance. It is also necessary to determine whether this action was taken immediately (as expected), or whether an advertiser delayed the implementation of any instructions to withdraw its advertising.

The Respondent was given an opportunity to respond to the allegation by chose not to. The Directorate had no other option but to rule on the matter based on the information it has at its disposal. There is nothing to indicate that there is anything to mitigate the breach, or to show the Directorate why there should not be a breach finding.

Accordingly, the Directorate is satisfied that the respondent’s current advertising is ex facie in breach of the previous ruling, and therefore in breach of Clause 15 of the Procedural Guide.

The breach allegation is therefore upheld, and the Respondent is reminded to ensure compliance in all its future advertising.

While the Directorate is not considering additional sanctions at this stage, the Respondent is reminded that further justified breach allegations may well result in such considerations, and the potential imposition of sanctions as contemplated in Clause 14 of the Procedural Guide.

In addition, the content of this ruling will be communicated to the ASA Members for their guidance.

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