Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
20 April 2012

How to make an ASA of yourself

The Advertising Standards Authority of South Africa (ASA) has made several highly controversial rulings in recent times, appearing hell bent on making an ASA of itself. Last year it ruled that an advertisement for Axe deodorant which showed a winged creature falling from the sky, ostensibly attracted to a man who has used Axe, was in breach of its code because the commercial set out to communicate that the new Axe fragrance is so irresistible that even angels will be enticed by it. The problem for ASA was that the angels were seen to “forfeit their heavenly status” (perhaps because it is well known that angels exist and live in heaven).

Now it has ruled that it cannot make any ruling on whether completely misleading and dishonest government adverts promoting the Secrecy Bill contravenes the Code. The Right2Know campaign had complained about these ads, invoking section 4.2.1 of the Code. This section states that:

Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.

In refusing to consider the merits of the case, ASA invoked section 2.4 of part I of the Code which states that:

To the extent that any advertisement:

· Expresses an opinion on a matter which is the subject of controversy; and
· That controversy involves issues within the areas, broadly defined, of public policy and practice, then that opinion shall not be subject to the provisions of the Code relating to misleading claims.

This exclusion is obviously aimed at those ads in which a controversial opinion is expressed about matters of public policy to the extent that such opinions are expressed. Thus, if an add expresses the opinion that etolling is a bad thing, that motorists should oppose the introduction of etolls and that etolls are being imposed by a government with no respect for citizens, it will not be possible for the government to complain about the add on the basis that the opinions expressed in the ads are incorrect. This is because opinions, by its very nature, are not easily verifiable as either true or untrue.

But surely the Secrecy ads are fundamentally different. If the adds promoted the Secrecy Bill by expressing the opinion that South Africa needed this law to protect the national security of the state, ASA would have been prevented from considering whether the ads are misleading or not, because the adds would express an opinion about whether the Bill is needed or not. Reasonable people may well differ about whether this is indeed the case.

But this is not what the ads do. They do not purport to express an opinion only, but also purport to inform the public about facts, namely what the Secrecy Bill is in fact aiming to achieve. They make what appear to be factual assertions about the scope and nature of the Bill. One of the television adverts presents a seven year old child (see below) saying that: “My government knows who I am because my government protected my birth certificate.” It then continues that the “Protection of State Information Bill is about getting serious, serious about protecting your information.”

The advertisement therefore states as fact – both in words and through visual presentation – that the Secrecy Bill is about protecting information relating to birth certificates. This is a factual claim which is untrue. To put it differently, this is a blatant lie. The exclusionary rule explicitly states that the exclusion only applies to the extent that it expresses an opinion. Where an advert contains both opinion and assertions of fact, the assertions of fact remain to be considered by ASA in terms of its rules. But What ASA has done is to refuse to adjudicate on the fal;se assertions because the advert also contains opinion. That is a blatant and obvious misreading of its own Code.

In fact the Secrecy Bill says absolutely nothing about Birth Certificates. Another law, the Births and Deaths Registration Act 51 of 1992, deals with this matter. Section 29 of this Act protects the secrecy of our Birth Certificates, prohibiting any person from publishing or communicating to any other person any information obtained from a birth certificate.

Section 31 of this Act states that it is a criminal offense for any person who has custody of a birth certificate to damage it or destroy it; to make false copies of a birth certificate or a reproduction. The Secrecy Bill does no such thing. The factual claim made in this advertisement is therefore false and is in contravention of section 4.2.1 of the Code. Because the advert purports to make true factual statements, ASA could not plausibly argue that the adverts merely deal with the expression of controversial opinions.

I will give an example to illustrate the distinction I am making but which ASA seemed unwilling or incapable of making. If someone produces an advert stating that President Jacob Zuma is a bad President because he is soft on corruption, that advert would be expressing an opinion and ASA would not be able to make a finding about the advert on the basis that it is misleading. Whether President Zuma is soft on corruption or not is itself a matter of opinion.

However, if that advert stated instead that President Zuma is a bad President because he has been convicted of rape, then the advert would include an assertion of fact that is demonstrably false and ASA would then not be able to invoke section 2.4 in order not to make a ruling on the advert. President Zuma has never been convicted of rape and the advert would therefore be false and misleading.

Similarly, the Secrecy Bill adverts state as fact that the Secrecy Bill is about matters with which the Secrecy Bill does not deal at all. It is therefore not a matter of opinion about whether these adverts are false and misleading. It is a matter of fact.

I guess one should not expect any semblance of logic to emanate from a body who seems to be prepared to believe that angels exists, but it is rather troubling that ASA has been too cowardly or subservient to make a ruling on these false and misleading adverts merely because this would have been politically awkward.

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