Al­low more free­dom for hu­mor­ous ad­ver­tis­ing

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - MIKE DU TOIT & WIM AL­BERTS

AS IS by now well-known, Vo­da­com re­cently changed its cor­po­rate colours from blue­green to red. This irked Cell C, who use the colour red promi­nently. In an ad­ver­tise­ment in re­sponse to this, Cell C used a blue car that was partly re­sprayed red. The ad­vert then says that “it takes more than a lick of paint to be­come SA’s num­ber one net­work”.

Vo­da­com sub­se­quently lodged a com­plaint with the Ad­ver­tis­ing Stan­dards Au­thor­ity (ASA) al­leg­ing that this and other parts of the ad­ver­tise­ment con­tra­vened the ASA’s code, among oth­ers, as it was dis­parag­ing and mis­lead­ing.

In com­ing to its de­ci­sion the ASA re­ferred to an ear­lier rul­ing in a dis­pute be­tween Ken­tucky Fried Chicken and Chicken Licken. The facts, briefly, were that the com­mer­cial be­gan with a per­son say­ing, “Howdy. We got a letter from the Colonel’s son.” The Colonel’s son ex­plains that his fa­ther makes him eat the same thing ev­ery day when all he wants is to try some hot wings. Some­one says, “Colonel Daddy’s about to be served.”

The peo­ple in­volved move to a fort where they find the Colonel, a per­son dressed in mil­i­tary garb with a large mous­tache, at­tempt­ing to light a can­non but in­stead one of the peo­ple stubs out the fuse with his fin­gers. The Colonel is then given a plate of Chicken Licken’s hot wings, where­upon the Colonel’s son ar­rives, to­gether with a woman who also has a beard, and while the Colonel is eat­ing, the son says: “You’ve been served.”

In the KFC case the ASA said that the dif­fer­ent in­ter­ests of the par­ties must be bal­anced. For Chicken Licken there was the free­dom to ex­press it­self through its mar­ket­ing cam­paigns. KFC, in turn, could ex­pect its com­peti­tors not to den­i­grate its prod­ucts or ad­ver­tise­ments. The ASA then pro­ceeded to say that the right of Chicken Licken must give way to its obli­ga­tion not to dis­credit its ma­jor com­peti­tor’s prod­uct or ad­ver­tise­ment. In the Cell C mat­ter the ASA con­cluded that the ad­ver­tise­ment was in­deed dis­parag­ing.

To eval­u­ate the ASA’s judg­ments in both in­stances one needs look no fur­ther than the Laugh It Off v South African Brew­eries de­ci­sion of the Con­sti­tu­tional Court.

A sug­ges­tion in SA that a com­pany has dis­crim­i­na­tory labour prac­tices is a se­ri­ous al­le­ga­tion, yet it was al­lowed in the Laugh If Off case even with­out proof of labour prac­tices.

It would seem, by com­par­i­son, that to ban a woman with a beard might in­fringe our con­sti­tu­tional right to hu­mor­ous ad­ver­tise­ments. Maybe it is time for the ASA to be “served”.

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