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Home Rulings WEB AFRICA INTERNET SERVICES / D SLATER / 2018 – 7211F

WEB AFRICA INTERNET SERVICES / D SLATER / 2018 – 7211F

Mr Slater lodged a consumer complaint against Web Africa’s LTE advertising campaign.

The advertisement shows a man wearing a red dress, make-up, fish nets and high heels, lying on his side, and suggestively playing with his wig.
 
The advertisement states, inter alia, that "LTE AT HOME. RACY-FAST, NO STRINGS ATTACHED INTERNET PLEASURE. FOR A GOOD TIME ONLINE” 

COMPLAINT

The Complainant submitted that the Respondent’s advertisement features an intentional and targeted negative depiction of a man in women's clothing in a provocative pose, and can be interpreted as discriminatory towards transgender people as it looks very raunchy and lots of sexual innuendo. It also features the slogans of "racy", "no strings attached" and "pleasure", thereby making inferences to sex work and promiscuity. It therefore also makes inferences that transgender people are promiscuous and relates them to trading in sex, thereby degrading them and enforcing certain stereotypes that transgender people are nothing more than sexualised beings that can be made fun of and degraded in a humorous fashion.

It was further submitted that, in general, the advertisement also serves to reinforce harmful stereotypes of transgender people, leading viewers of the advertisement to make fun of them and regard transgender people as being nothing more than a demographic to be laughed at, made fun of and humiliated. 

The inferences to sex work through the slogans of "racy" and "no strings attached pleasure" also degrade sex workers through implying sex can be easily and cheaply bought without any consideration for the actual person. 

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

The complainant identified the following clauses of the Code as relevant:
  • Section II, Clause 3.4 – Discrimination
  • Section II, Clause 3.5 – Gender


RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint Clauses 3.4 and 3.5 of Section II (Discrimination and Gender) were taken into consideration.

RESPONSE

The Respondent submitted that the advertisement does not depict a transgender person. The Cambridge Dictionary definition of "transgender” at https://dictionary.cambridge.org/dictionary/english/transgender is:  "used to describe someone who feels that they are not the same gender (= sex) as the physical body they were born with, or who does not fit easily into being either a male or a female”.

It argued that there is nothing in the advertisement that suggests that the man depicted in any way feels uncomfortable in his outfit or his gender. In reality, the model in the photograph is a happily married heterosexual man, in drag. If anything, the campaign is promoting the diversity of the South African audience, one that supports people who dress or appear in any way that is comfortable to them. The model depicted in its LTE advertisement is the same character who it picture in all of its advertising, for all of its main products, both online and offline. He is always depicted in a light-hearted fashion and there is no reference to sex workers.

The Respondent also drew attention to the Code provisions on hyperbole. Finally, it pointed out that this is the first complaint in three years of the campaign.


ASA DIRECTORATE RULING

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

Discrimination

Clause 3.4 of Section II states that "no advertisements shall contain content of any description that is discriminatory, unless, in the opinion of the ASA, such discrimination is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. 

Discrimination is defined in Clause 4.17 of Section I as follows:
"Discrimination" means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly – 
4.17.1 imposes burdens, obligations or disadvantage on; or 
4.17.2 withholds benefits, opportunities or advantages from, 
4.17.3 any person on one or more of the following grounds: 
4.17.4 race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, or 
4.17.5 any other analogous ground; and "discriminate" and "discriminatory" shall have corresponding meanings. 

The Directorate is called upon to determine whether the Respondent’s commercial is demeaning to transgender community. The Directorate notes that this is a serious issue, involving, as the Complainant points out, a community that is often the target of jokes and misunderstandings, as well as more dangerous discrimination.

The Directorate also has to adopt a reasonable and objective approach, viewing the commercial from the perspective of the hypothetical reasonable person who is neither over-critical nor overly sensitive.

The Directorate starts by noting that the Respondent is right that the man depicted does not appear to be transgender, although not necessarily for the reasons set out by the Respondent. A transgender person is defined at www.oxforddictionaries.com as "denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex”. A transvestite is, "A person, typically a man, who derives pleasure from dressing in clothes primarily associated with the opposite sex”. The Directorate is firstly of the opinion that the character in the advertisement, who is very clearly a man – he has a beard and a wig – is most likely depicting a transvestite rather than a transgender person, who will normally present in a less over-the-top manner and actually look like the gender that they self-identify as. This definition is  significant as transvestism is more associated with an act for (sexual) pleasure, while being transgender is a biological state. That being said, a transvestite should not be discriminated against either.

However, the Directorate does not think that the message of the advertisement is that there is anything negative or discriminatory communicated about either transgender people or transvestites. The communication of the advertisement is that introducing cross dressing into one’s life is "fast” and "racy” and related to "pleasure”. It is also positively equated to the Respondent’s product.

The Directorate agrees with the Respondent that this commercial is intended as a light hearted play on the typical, "For a good time, phone. . .” advertising line. This does, of course, create a slight allusion to sex work. However, the Directorate does not believe that the hypothetical reasonable person would conclude that many or all transvestites or transgender people are inevitably sex workers. Similarly, the Directorate does not consider the commercial to be demeaning to sex workers. The Complainant’s contention that it implies that "sex can be easily and cheaply bought without any consideration for the actual person” is not based on any communication in this advertisement.

Finally, the Directorate does consider it of some significance – although not decisively so – that this is the first complaint in three years of use.

The Directorate is therefore of the opinion that a hypothetical reasonable consumer would not interpret the commercial as discriminating or portraying transgender people in a negative light but rather as humorous or hyperbolic execution with the intention to catch the eye or to amuse.
Based on the above, the Directorate is satisfied that this commercial, viewed as whole, is not demeaning and does not impose any burden on any person.

In light of the above, it cannot be said that the advertising is in contravention of Clause 3.4 of Section II of the Code.

Gender

Clause 3.5 of Section II prohibits unreasonable gender stereotyping or negative gender portrayal in advertising unless in the opinion of the ASA, such stereotyping or portrayal is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Gender stereotyping is defined in Clause 4.19 of Section I as "advertising that portrays a person or persons of a particular gender in a manner that exploits, objectifies or demeans”; whereas, "Negative Gender Portrayal” is defined in Clause 4.22 of Section I as "advertising that portrays a person or persons of a certain gender in a manner that restricts and entrenches the role of persons of such gender in society or sections of society”.

The Directorate is of the opinion that, in so far as the definition of "gender” encompasses transgender and transvestite people, the reasoning set out above applies mutatis mutandis to the consideration of Clause 3.5 of Section II.

As such, the commercial is not found to be in contravention of Clause 3.5 of Section II of the Code.

The complaint is dismissed.



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