The Advertising Standards Authority (ASA) has come under new pressure to reconsider its decision not to investigate the department of state security’s advertisements concerning the Protection of State Information Bill, also known as the secrecy Bill.
Earlier in April, the Government Communication and Information Service launched an advertising campaign which claims that the Bill would protect people from identity theft and stop others from collecting the pensions of those who have died. The campaign reportedly cost the state R3-million and the adverts have been derided as being clumsy, confusing and misleading.
The adverts were released after a number of high profile figures, including public protector Thuli Madonsela and Nelson Mandela’s former defence lawyer George Bizos, voiced opposition to the Bill. The Bill has been described as unconstitutional and there are fears that it would have a chilling effect on whistle-blowing and press freedom.
The ASA has for a third time refused to investigate the adverts, saying that they were “controversial advertising”. It based its ruling on a clause which states that advertisements which express an opinion on a matter that is subject to controversy concerning public policy are not subject to the provisions of the code relating to misleading claims.
The DA’s parliamentary leader, Lindiwe Mazibuko, has now written to the ASA asking that it reconsider its decision. Mazibuko said this week that the advertisements breach three separate advertising codes and that they are factually misleading, make unsubstantiated claims that may fuel people’s fears, exaggerate the scope of the Bill, and fail to mention that the Bill could be used to cover up corruption and hide embarrassing information.
Two previous complaints about the adverts, one from an individual and another from free speech advocacy group the Right2Know campaign (R2K), have also been turned away by the ASA.
R2K national coordinator Murray Hunter said he was not surprised by the ASA’s decision not to investigate the complaints. “The ASA has a reputation for dodging tough decisions, so this is nothing new,” he said.
Hunter said R2K is also considering an appeal.
Meanwhile, marketing analyst Chris Moerdyk has accused the ASA of inconsistency and the selective application of its regulations.
Moerdyk said that while the ASA had now turned down three complaints about the adverts concerning the Bill, which is of national importance, it had recently investigated a trivial complaint concerning the size of a laundry detergent.
He said the ASA was hiding behind an ambiguous provision of its code in order to justify its decision not to investigate the matter. “It’s all a question of political correctness. They don’t want to touch anything to do with government,” he said.
But advertising law specialist Gail Schimmel disagreed with the idea that the ASA had backed down because it fears government. She said it was more likely that the ASA had tried to find a way to opt out of ruling on a complex issue.
“I don’t think it’s anything malicious or a fear of government — but it’s obviously going to be a difficult, high profile and controversial decision [to make] — they’ve looked for a way out,” she said.
Schimmel said that the code could “very easily” be interpreted in a way that would bring the matter into the ASA’s ambit.
Leon Grobler, who manages the ASA’s dispute resolution unit, denied that the organisation had opted not to rule on the matter out of a fear of political or state entities.
“I don’t think that we’ve ever shied away from any political decisions,” he said. “It’s more a question of the interpretation of our code.”
Grobler pointed out that the ASA had in the past made decisions that were considered very political, including a ruling which prevented the Tshwane Metropolitan Council from referring to Pretoria as Tshwane in its adverts, and the case concerning the Dr Rath Health Foundation’s claims that antiretrovirals were toxic.
He also denied that the ASA had tried to find an easy way out of a complicated decision. “We realise that’s the perception out there but it’s not a question of trying to get away from something. The ASA has very strict procedural guidelines that tell us what we can and can’t [investigate],” he said.
Grobler said that the ASA would be meeting to consider the DA’s request that it reconsider its decision, and that this could happen as soon as this week.