As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The printed media in South Africa, under pressure from the government and the ruling party, has touted self-regulation via the Press Ombudsman as a model of how to deal with complaints from the public about unethical, untrue or sloppy journalism. But self-regulation is not always a success, especially where the code in terms of which such regulation is conducted is vague or where the code fails to embody the values associated with an open and democratic society in which freedom of expression is respected and the principle of diversity is celebrated.
A recent decision by the Advertising Standards Authority of South Africa (also known as the ASA) demonstrates this point rather starkly. ASA is an independent body set up and paid for by the marketing communication industry of South Africa tasked to regulate the advertising industry of South Africa.
Last week it ruled in favour of Mr Dawie Theron, who lodged a complaint against a television commercial for Axe deodorant. The commercial opens with a little boy witnessing a winged creature falling from the sky. Following this, many more of these creatures are shown falling to earth, ultimately getting up and approaching a man who is somewhat unsure of what is happening. The closing scene shows the man spraying the deodorant and a subsequent thud sound is heard. The voice over says, inter alia, “New Axe deodorant. Even angels will fall.” The text on screen states, “EVEN ANGELS WILL FALL.”
In essence, Mr Theron said that he was offended by the use of angels in the commercial. The fact that these winged creatures fall from the sky suggests that they are heavenly creatures. According to the Bible, angels are God’s messengers, and the suggestion that angels will fall for a man wearing this deodorant is incompatible with his belief as a Christian. (I am not sure whether Mr Theron was also perhaps uneasy because angels are usually depicted as men and that the advert could hence be seen to promote homosexuality if one was really paranoid and easily offended.)
ASA invoked the following rule to justify its decision:
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.
In its ruling ASA acknowledged that South Africa was a multi-cultural society and recognised that it is important to ensure that all religious faiths and beliefs, no matter how large or small the communities that practice them, are treated with the same consideration and respect. Noting that the “commercial is metaphorical and that the angels are meant to represent something more than simply beautiful women” (the power of deduction is quite impressive!), ASA found that “the commercial sets out to communicate that the new Axe fragrance is so irresistible that even angels will be enticed by it”. It then went on to provide the following reasons for banning the advert:
An angel, according to Christian beliefs is God’s heavenly messenger who obeys His commands. Angels also symbolise purity and goodness while “fallen angels” symbolise wickedness. Fallen angels are generally as angels that rebel against God, and are permanently banned from God’s glory and presence. The Directorate is also mindful of the fact that the angels are not simply coming to earth, or descending on earth, but falling, effectively crashing to earth, which supports the notion that they are fallen angels, presumably banished. When it becomes apparent that they are falling from heaven over a man who wears this deodorant would be considered disrespectful and offensive to the core beliefs of Christians, as angels are known to be celestial beings regarded as divine and pure. The commercial therefore communicates that saintly creatures would give up their heavenly status and fall from grace for a man… As such, the problem is not so much that angels are used in the commercial, but rather that the angels are seen to forfeit, or perhaps forego their heavenly status for mortal desires. This is something that would likely offend Christians in the same manner as it offended the complainant.
In coming to its decision ASA failed to take into account sub-clause 2 of the same part of the code which states:
Advertisements should contain nothing that is likely to cause serious or wide-spread or sectoral offence. The fact that a particular product, service or advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or service. In considering whether an advertisement is offensive, consideration will be given, inter alia, to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest.
If it had taken this clause into account, it would at the very least have asked whether a reasonable Christian (of who, I am told, there are many) would have been offended by the advert. It would not have asked whether the particularly narrow-minded and easily offended segment of the Christian population would have found the advert offensive, but would have asked instead whether the advert would have caused serious and widespread offensive.
It also failed to interpret the code against the background of the South African Constitution as, I would argue, it was required to do. If it had been a bit more sober and informed, ASA might have known that the Constitutional Court in the Islamic Unity Convention case endorsed the idea that the right to freedom of expression is:
applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.
Of course, the standard that should apply to advertisements flighted on television might be stricter than the standard applied to other kinds of speech in the public arena. Viewers cannot easily tune out of adverts they find offensive and it would therefore be permissible to restrict the kinds of themes that can be relied upon in adverts targeted at television audiences.
But this does not mean that it should cave in to the bizarrely thin-skinned viewers who are so easily offended when an advert contains any material with which he or she does not agree. A code regulating advertising cannot endorse close-mindedness or the unhinged personal feelings of some South African who demand that their personal beliefs are so precious yet so frail that these beliefs had to be protected at all cost.
The logic of this ruling would lead ASA to ban adverts for many churches and other religious organisations. Although I am personally not easily offended, I imagine that many atheists would feel deeply offended every time they have to watch an advert (talk about false advertising) that says one will burn in hell if one did not follow the Lord Jesus or states that only that religious group has the answer to what constitutes a meaningful life on earth.
In an open and democratic society based on human dignity, equality and freedom, it is impossible to protect every person from ever feeling offended — even by adverts. If we are going to prohibit adverts on the basis that it offends one or two religious crackpots, we will not have many adverts flighted on television or the radio.
Confronted by the “reasoning” of ASA, one cannot but suspect that the person who made this decision is himself a rather intolerant Christian who believes that the values of a narrow band of people should be enforced on all of us. This is not the kind of open society envisaged by our Constitution, but a society in which the beliefs and feelings of a few people dictate to the rest of us.BACK TO TOP