SA ASA Code pro­tects in­ter­na­tional ad­ver­tis­ers

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and other mar­ket­ing com­mu­ni­ca­tions by or from com­pa­nies, or­gan­i­sa­tions or sole traders on their own web­site, or in other non-paid space on-line un­der their con­trol, that are di­rectly con­nected with the sup­ply or trans­fer of goods, ser­vices, op­por­tu­ni­ties and gifts, or which con­sist of di­rect so­lic­i­ta­tions of do­na­tions as part of their own fundrais­ing ac­tiv­i­ties.”

The ex­ten­sion of the UK Code may have far-reach­ing con­se­quences for South African on­line ad­ver­tis­ers or elec­tronic trad­ing plat­forms where the web­sites are ac­ces­si­ble by cit­i­zens of the UK. The UK’s Con­sumer Pro­tec­tion Reg­u­la­tions re­lat­ing to “dis­tance sell­ing” would ap­ply. In ad­di­tion, the nor­mal pro­hi­bi­tion against mis­lead­ing ad­ver­tis­ing would ap­ply, the de­tails of which are sim­i­lar to what our code de­ter­mines.

An as­pect that South African ad­ver­tis­ers should be aware of is the pos­si­bil­ity that the trade­marks used in their on­line ad­ver­tis­ing may be in­fring­ing the rights of third par­ties in the UK. One is prob­a­bly faced with two types of on­line ad­ver­tis­ers, the in­ci­den­tal ad­ver­tiser whose web­site is ac­ces­si­ble in the UK by some­one do­ing some in­ter­net brows­ing and the ad­ver­tiser who tar­gets the UK mar­ket as part of its strat­egy. The lat­ter should be aware of the risks in­volved in ad­ver­tis­ing and pro­vid­ing goods or ser­vices where the trade­mark used may be in­fring­ing the rights of third par­ties. It re­quires at least a clear­ance search to be done and, if avail­able, those trade­marks should be reg­is­tered to pro­tect their abuse by third par­ties.

Al­though the UK code does not ap­ply to mar­ket­ing com­mu­ni­ca­tions in for­eign me­dia, there are ex­cep­tions which may be the rule in the case of South African web­sites. Nor­mally, di­rect mar­ket­ing com­mu­ni­ca­tions that orig­i­nate out­side the UK and are pub­lished on non-UK reg­is­tered web­sites, if tar­get­ing UK cus­tomers, are sub­ject to the ju­ris­dic­tion of the rel­e­vant au­thor­ity in that coun­try if that au­thor­ity op­er­ates a suit­able cross-bor­der com­plaint sys­tem. In the case of SA, it does not and, con­se­quently, the UK ASA will be able to take ac­tion.

The new UK sanc­tions in­clude nam­ing and sham­ing the ad­ver­tiser on the UK ASA web­site, re­mov­ing, with the co-op­er­a­tion of the search en­gine, paid for search ad­ver­tise­ments that link di­rectly to the page host­ing the non-com­pli­ant mar­ket­ing com­mu­ni­ca­tion on the ad­ver­tiser’s web­site and the plac­ing of paid for ad­ver­tise­ments on the in­ter­net search en­gines that high­light the non-com­pli­ance of the ad­ver­tiser.

It is no longer good enough to rely only on a trade­mark clear­ance search be­fore em­bark­ing on an ad­ver­tis­ing cam­paign. Ad­ver­tis­ers should be aware of the lim­i­ta­tions im­posed by the South African ASA Code in­so­far as the copy­ing of in­ter­na­tional ad­ver­tis­ing, brand­ing, pack­ag­ing and la­belling goes.

In those in­stances where South African on­line ad­ver­tis­ers’ web­sites are ac­ces­si­ble from the UK, those ad­ver­tis­ers should be aware that the UK ASA Code can take ac­tion against of­fend­ing ad­ver­tis­ing ma­te­rial. The web­sites should there­fore not only com­ply with South African ASA re­quire­ments, but also with those of the UK. Those ad­ver­tis­ers who choose to ig­nore these ad­ver­tis­ing reg­u­la­tions do so at their own peril.

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