Fit­ness group wins ad­vert case

ASA rules that the use of the ex­pres­sion ‘get off your ass’ is not of­fen­sive

Business Day - Business Law and Tax Review - - FRONT PAGE - GAE­LYN SCOTT

ENSafrica suc­cess­fully rep­re­sented Vir­gin Ac­tive in a South African Ad­ver­tis­ing Stan­dards Author­ity (ASA) mat­ter, re­gard­ing a Vir­gin Ac­tive TV ad­ver­tise­ment that used the ex­pres­sion “get off your ass”.

The case in ques­tion is S Jack & oth­ers v Vir­gin Ac­tive South Africa (Pty) Ltd, and the rul­ing was handed down on Fe­bru­ary 26 2016.

The point of the ad­ver­tise­ment was to per­suade peo­ple to start work­ing out at Vir­gin Ac­tive gyms. Un­der the ban­ner “GET UP, GET AC­TIVE”, the ad­ver­tise­ment used the ex­pres­sion “get off your ass” on a num­ber of oc­ca­sions. Here are two ex­am­ples:

“If you’re feel­ing kind of bummed that you’re not hav­ing all the fun, get off your ass.”

“If you think the world’s against ya cos your nice pants they don’t fit ya … get off your ass.”

A hand­ful of peo­ple com­plained about the ad­ver­tise­ment, claim­ing it con­tained an ex­ple­tive.

The ASA rul­ing deals with two sep­a­rate pro­vi­sions of the ASA Code. The first of th­ese is clause 14 of sec­tion II, which deals with ad­ver­tis­ing and chil­dren. This clause says, among other things, that an ad­ver­tise­ment should not cause chil­dren men­tal, phys­i­cal, emo­tional or moral harm, nor should it leave chil­dren with the im­pres­sion that un­de­sir­able be­hav­iour is ac­cept­able.

The sec­ond pro­vi­sion, clause 1 of sec­tion II, deals with of­fen­sive ad­ver­tis­ing. It says that “no ad­ver­tis­ing may of­fend against good taste or de­cency or be of­fen­sive to pub­lic or sec­toral val­ues and sen­si­tiv­i­ties, un­less the ad­ver­tis­ing is rea­son­able and jus­ti­fi­able in an open and demo­cratic so­ci­ety based on hu­man dig­nity, equal­ity and free­dom”.

Vir­gin Ac­tive re­sponded to the com­plaint with a num­ber of ar­gu­ments. It said that the ad­ver­tise­ment is mo­ti­va­tional, in that it ex­horts peo­ple to ex­er­cise. It said that the ex­pres­sion “get off your ass” is col­lo­quial, and isn’t out of line with so­ci­ety’s val­ues. It ar­gued that the ex­pres­sion is ap­pro­pri­ate, given the light­hearted and fun tone of the ad­ver­tise­ment and that there was no vis­ual con­nec­tion with any body part.

It fur­ther said that it is gen­er­ally adults who go to gyms, so the ad­ver­tise­ment wasn’t aimed at chil­dren.

It added that most chil­dren know the word “ass” (or “arse”) any­way, be­cause it is of­ten heard on TV.

Vir­gin Ac­tive also re­ferred to a num­ber of ear­lier ASA de­ci­sions that have dealt with the word. In par­tic­u­lar:

The Re­nault case, in which the ASA held that the phrase “I came, I saw, I kicked ass” was not of­fen­sive — the ASA Direc­torate on this oc­ca­sion made the point that the word “ass” is less of­fen­sive than the word “arse”.

The Art Lab case, in which the ASA held that the term “kick-ass dig­i­tal

print­ing” was in line with so­ci­ety’s val­ues.

The Groet die Grot­man (Defending the Cave­man) case, in which the ASA held that the Afrikaans word for ar­se­holes (“poepholle”) would not harm chil­dren, and would not en­cour­age them to use it in­dis­crim­i­nately.

Deal­ing with the is­sue of ad­ver- tis­ing and chil­dren, the ASA Direc­torate first re­ferred to the ear­lier de­ci­sions and said: “As is ev­i­dent from the above, the direc­torate ac­cepts that the word ‘ass’, while not nec­es­sar­ily prefer­able to parents, would not likely cause men­tal, emo­tional or moral harm to chil­dren.”

It then dis­cussed the ad­ver­tise­ment’s flight­ing sched­ule, and noted that it gen­er­ally ap­peared with shows aimed at adults. Finally, it dealt with the ar­gu­ment that the word “ass” was used ex­ces­sively — five times in a 42sec­ond com­mer­cial.

The direc­torate had no prob­lem with this, say­ing that it was “con­tex­tu­alised” and used to en­cour­age a healthy life­style.

Mov­ing on to the of­fen­sive­ness ob­jec­tion, the direc­torate noted that it needed to con­sider the mat­ter from the view­point of the “hy­po­thet­i­cal rea­son­able per­son”.

It added that “this ap­proach adopts nei­ther an over­sen­si­tive nor a hy­per­crit­i­cal per­spec­tive, and takes into con­sid­er­a­tion rel­e­vant fac­tors such as the con­text and likely au­di­ence for the com­mer­cial.”

The direc­torate con­cluded that it was sat­is­fied that in the con­text of a hu­mor­ous and light­hearted com­mer- cial, the word “ass” would not cause of­fence.

Al­though ENSafrica’s in­volve­ment with ASA mat­ters gen­er­ally re­lates to trade­mark style mat­ters (in other words, mat­ters where there are is­sues of con­sumer con­fu­sion or copy­ing), we also get in­volved in other, more gen­eral ad­ver­tis­ing law is­sues, such as al­legedly mis­lead­ing or of­fen­sive ad­ver­tis­ing.

Pic­ture: iSTOCK

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