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Home Rulings PRICE CHECK / KAY HORN / 2017 - 7076F

PRICE CHECK / KAY HORN / 2017 - 7076F

Mrs Horn lodged a consumer complaint against the Respondent’s advertising appearing at www.pricecheck.co.za. 

The advertising shows a naked male doll with an erection priced at R370.00 

COMPLAINT

The Complainant submitted that she gets pop-up adchoice material on her yahoo account despite the fact she did not subscribe to this service. The advertising complained of highly offensive and should be against the law as it constitutes pornographic material. The Complainant requested the stringent punishment against the respondent for placing unsolicited pornographic content and for risking the innocence of children and causing offense to the public.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint Clause 1 of Section II of the Code (Offensive advertising) was considered relevant.  

RESPONSE

The Respondent submitted that it is not a member of the ASA; it does not wish to submit to the jurisdiction of the ASA; it is under no obligation to respond to the allegations made against it. It, however, wishes to address the matter as it has a sensitive nature and does not wish to offend any of its consumers.

In dealing with the merits, the Respondent submitted that it employs a third party service provider to serve personalised online display advertisements to consumers who have previously visited its website. In order to prevent improper advertisements from appearing, the respondent categorises the products, including products of a sexual nature and the service provider automatically blocks those advertisements by referencing the categories. 

Unfortunately, on rare occasions, inappropriate advertisements can get through the service providers screening. This kind of occurrence is generally as a result of the incorrect categorising of the product. The Respondent advised the Directorate that as soon as it became aware of the incident, it immediately blocked the advertising and notified the service provider. The Respondent then apologised for offending the Complainant and confirmed that it has no intention of displaying such images to children or any consumer who has not searched for similar-natured products.

ASA DIRECTORATE RULING

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

Jurisdiction

The Respondent has raised that it is not a member of the ASA and it does not wish to submit to the ASA’S 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.”

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

Merits

The Respondent advised the Directorate that it removed the advertising as soon as it became aware thereof and undertook not to show or promote that kind of material to consumers who have not searched its platform for material that is of a sexual nature.  

The ASA has a long-standing principle which holds that where an advertiser provides an unequivocal undertaking to remove or amend its advertising in a manner that addresses the complainant’s concerns, that undertaking may, at the discretion of the ASA, be accepted without considering the merits of the matter.

The Respondent has removed the material and undertook to ensure that such material is properly managed in future. This appears to adequately address the Complainant’s concerns.

The Respondent’s voluntary undertaking to amend its advertising is therefore accepted on condition that same material is not shown or promoted to consumers who have not searched similar products in the past.


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