Although the Advertising Standards Authority cannot exercise jurisdiction over anyone who is not a member of their organisation, a recent appeal has illustrated that they may still hold some power in regulating advertising in South Africa. This is positive news for consumers, who are directly impacted by the untruths communicated in false advertising.
Historically, the ASA has had the power to self-regulate advertising in favour of consumers. It is not a statutory body or government agency, but an independent body, comprising members from large advertising companies and media. This gives it little authority over its members and broadcasters under the Electronic Communications Act.
The appeal saw the Supreme Court of Appeal (SCA) overturn a High Court decision that had rendered the ASA powerless. The matter in question was a settlement between the ASA and a company called Herbex (Pty) Ltd.
Herbex sells weight loss products and had been targeted by the ASA for the advertising of one particular product in their offering. However, Herbex is not a member of the ASA, so when the independent body made the ruling against them, they took the matter to the High Court.
The High Court ruled that, since Herbex was not a member of the organisation, the ASA had no jurisdiction over it. It also emphasised that the ASA must clarify over whom they hold jurisdiction when issuing letters of complaint, thus making it clear that non-members are not required to participate in its complaint processes. The High Court, therefore, rendered the ASA ruling null and void, and ordered that the rulings be removed from the ASA website and that the ASA compensate Herbex for their legal costs.
Although an appeal was lodged, the matter was settled out of court and the agreement between the parties was made an order of court. The agreement states the following:
“The ASA has no jurisdiction over any person or entity that is not a member of it. Unless a non-member submits to the ASA’s jurisdiction, the ASA cannot require the non-member to participate in its processes, or issue any instructions, order or ruling against it.
The ASA may consider and issue a ruling to members (which won’t be binding on non-members) on any advertisement, regardless of who published it, in order to determine whether its members should accept the advertisement (if it hasn’t yet been published) or withdraw it (if it has already been published).
The ASA must include paragraph 1 in its standard letter of complaint, but must also point out that if the non-member chooses not to participate, the ASA can still consider the complaint and could issue a ruling as set out in paragraph 2.”
Therefore, the ASA can continue to issue complaints, regardless of whether the party in question is a member or not. It is then up to the offending party to respond and, if a member of the ASA, submit to its jurisdiction. While the ASA cannot order a non-member to withdraw their advertisement, they can instruct its members to refuse to publish the advertisement, a strategy that has proved effective in the past, as most media companies belong to the ASA.
Independent bodies such as the ASA are critical to ensuring advertising is fair and honest. While this recent ruling may leave the ASA with less power than before, we are confident it will remain an active force in championing South African consumers.