In doing this, the ASA is not in fact pulling some new rule out of its back pocket, but is relying on a longstanding clause in the Code of Advertising Practice. Clause 2.4 of Section I states:
"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 except that..."
It goes on to list a number of provisions that are not applicable to this matter.
Now, I would agree that the ASA is correct in that it has identified that the government's advertisements deal with an issue that is controversial, and that does "broadly" involve an issue of public policy. However, I have to question whether the ASA has carefully read the clause. The clause says: "To the extent that... expresses an opinion..."
Advertising in question goes further
In other words, the advertising only falls outside of the ASA's mandate "to the extent that" it "expresses an opinion". The advertising in question goes further.
It doesn't say, 'We think this bill is a really cool idea.' It says, 'This bill is there simply to protect your information and keep you safe.'
This is potentially misleading, as the bill has many other - arguably more sinister - applications:
One version implies that our birth certificates and such are in some terrible danger as the law stands. From what? Invading Martians? The only thing that our papers are abused by is corrupt government employees, and the Protection of State Information Bill isn't going to fix that particular problem.
Another somehow thinks that the protection of our ID books is all that stands between us and civil war; and
It's beyond me what the bill has to do with the Asian women who were lured to South Africa under false pretences - seems it was the sharing of information that saved her bacon!
Fall back within ASA remit
So the advertisements go further than simply expressing an opinion on the issue - and, in so far as they go further, they fall back within the remit of the ASA.
They are potentially misleading, and dishonest in that they "abuse the trust of the consumer", which is an offence in terms of Clause 2 of Section II of the ASA Code.
I'm not of the opinion that the ASA is particularly scared of the government - it has in recent years taken on the Municipality of Tshwane with guns blazing. I also don't have a problem with its policy of responding to one complaint, or ruling on issues that are essentially subjective.
Can't help feeling
But, in this case, I can't help feeling that when it turned to the code, it did so with the attitude of 'let's find something that gets us off investigating this', rather than an attitude of 'let's check whether we can find a way to investigate this'.
Which is, just a bit, disappointing.
State Security's Protection of State Information Bill radio ad
State Security's Protection of State Information Bill ad 1
State Security's Protection of State Information Bill ad 2
State Security's Protection of State Information Bill ad 3
State Security's Protection of State Information Bill ad 4
State Security's Protection of State Information Bill ad 5
Gail Schimmel is a specialist in advertising law. She runs a consultancy - Clear Copy (www.clearcopy.co.za) - that offers advice to marketers and advertisers in relation to the Advertising Standards Authority (ASA) and other aspects of advertising law. An admitted attorney (with BA, LLB, Psychology Honours and LLM degrees), she was previously head of legal and regulatory at the ASA, and subsequently joined Edward Nathan Sonnenbergs as a director in 2008. Email and follow @GailSchimmel.
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