Recent Rulings of ASA Directorate


6 March 2014, 2014-541F (RADIO); Attorneys for MTN lodged a competitor complaint against a radio commercial first flighted February 20, 2014. The Commercial; The commercial states: “Everyone wants to pay less for their cellular calls. One of South Africa’s biggest and most profitable cellular companies is taking the regulator to court over a bid to lower interconnect rates… if you’re on their network, part of the money you pay will be given to the lawyers who are trying to stop this. You can change to the network that offers the lowest guaranteed flat call rate in South Africa. You can change to Cell C…”. The Complainant; Submitted for customers on different networks to communicate the networks must be connected to other networks, this is known as interconnection. “The radio commercial gives the false impression” that regulations will “lower prices” and “fails to explain that Cell C will be the primary beneficiary of the change in the regulations, misrepresenting Cell C’s reasons for favouring the regulations”. The Respondent; It was submitted that; “lower interconnect rates reduce communication costs”. The respondent argued it has been careful to stick to the facts, and avoided emotive words/tone and absolute statements.

The Ruling; ASA noticed the parties that, “The purpose of the ASA Directorate’s ruling is to determine whether the commercial complies with the Code of Advertising Practice” and “is not to be construed as commenting on the regulations published by ICASA”.  The respondent’s radio commercial is framed so as to exploit the lack of knowledge of the consumer, and misleads the consumer by omitting material facts about the regulations and by misrepresenting the complainant’s actions. The commercial is therefore in breach and the complaint is upheld.

28 February 2014, 2014-183f; Mrs van der Westhuizen lodged a consumer complaint against a television commercial promoting Hippo Insurance service. The commercial; A clown reluctantly smiling with the words “CHOOSING INSURANCE. THE CLOWN METHOD” appear on-screen. He then enters a tent, where five toddlers are seated in seats marked A, B, C, D and E. As the clown enters the tent, he makes a noise waving his hands in the air. One child appears confused, starts crying and walks out while the others remain seated. The clown is shown smiling while a voice states “Don’t choose insurance like this. Rather compare quotes with the Hippo. Choose the one that’s best for you and save at”. The Complainant; submitted that the advertiser is allowing children to be used and scared for the sake of making a commercial. She submitted that children are naturally scared of clowns, and these particular children were unwilling participants to these actions. The Respondent; submitted the commercial depicts an exaggerated, irrational and unrealistic method of choosing insurance. While true that some children are scared of clowns, it cannot be said that all children are. The commercial was shown after 19:00. The children were filmed separately from the clown.

The Ruling; The complaint does not suggest that children viewing the commercial at home are likely to be scared or harmed by it in a manner that contravenes the provisions of this clause. The commercial is not found to be in contravention. The complaint is dismissed.

13 February 13, 2014, 22937; Attorneys for MTN lodged a complaint against a television commercial for Vodacom that broadcast October 31, 2013 on SABC 3. The commercial centres around a fictional family called “The Khumalos”. “Aussie Gladys” expresses frustration over her network’s dropped calls and lack of service, “Sticks” suggests she switch to Vodacom. He explains by saying: “Vodacom has the widest network coverage, so you get quality connections. That means less dropped calls so you don’t waste money or get frustrated. Overall, Vodacom has the best and fastest 3G and LTE network for smartphones, so you can enjoy uninterrupted streaming and superfast connection speeds. In fact, Vodacom is the best network in South Africa. You should switch to Vodacom now…” The complainant; submitted that the crux of its complaint is that it is impossible for Vodacom or any other network to substantiate the blanket, unqualified claims made in the commercial. These imply Vodacom’s network is the best at all times, in all regions of the country. This is simply not true. The respondent An advertising agency for Vodacom, submitted a report with several documents in support of the claims, arguing that the complainant is hypercritical. The argument that a “best” claim implies a network must be best at all times in all regions is fundamentally flawed. Vodacom claims to have the best network, not a perfect network. Ookla data shows Vodacom can make that claim with 7.78Mb/s against MTN’s 4.31Mb/s. According to the Charnas report, Vodacom has 40% more 3G towers and 44% more LTE towers than MTN, resulting in population coverage of 90% over MTN’s 68%.

The Ruling; Advertisements should not attack, discredit or disparage other products, services, advertisers or advertisements directly or indirectly. The Directorate is not convinced that the average, reasonable consumer would watch the commercial and understand it to refer to MTN or its products. The complainant’s arguments on disparagement are dismissed, the claim does not contravene the Code.

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