ASA ruling favours NGOs

On 4 March 2015, the ASA's Final Appeals Committee found that the statement contained in a Gun Free South Africa ad campaign promoting responsible gun ownership constituted an expression of opinion on a matter of public importance. It accordingly held that the campaign fell outside of the ASA's jurisdiction.

NGOs in South Africa are often faced with hostility as they deal with controversial issues. Responsible gun ownership is one such issue, but others include freedom of choice in pregnancy, legalisation of sex work and restorative justice. The finding sets an important precedent for NGOs to challenge objections to advocacy adverts.

The precedence-setting ruling took a year to get to and relates to an ad campaign created pro bono for Gun Free South Africa (GFSA) by Y&R Advertising. The provocative message of the ad campaign is that a licensed gun owner remains connected to his or her gun, even after it is stolen or lost, when it is used by criminals to threaten, injure or even kill others. The adverts include the by-line, "If your stolen gun was there, so were you. Eighteen South Africans are shot and killed every day. Take responsibility. Hand in your gun. Visit gfsa.org.za for more information."

GFSA approached a range of media entities to run the ads free in support of responsible gun ownership. The response from media for this message was astounding, for instance eTV and eNCA donated R1.5 million of airtime to flight the TV ad, while newspapers across the country published copies free.

Some weeks into the campaign, a complaint was laid with the ASA by a gun lobby group about an advert published pro bono in the Sunday Times. This resulted in a series of submissions and hearings involving the ASA Directorate and Appeal Committee. Finally, in February 2015 ASA's Final Appeals Committee heard the case, at which GFSA's legal team, who donated their time, argued that:

1. GFSA (and by implication, other NGOs) falls outside of the Code's ambit and is thus not bound by it

2. The ad campaign is an expression of opinion falling under "advocacy advertising" as set out in Clause 2.4 of Section I of the Code, which is not subject to the provisions of the Code

3. GFSA's right to freedom of expression is violated by the prohibition of the campaign

In an unprecedented win for NGOs, ASA's Final Appeals Committee upheld GFSA's appeal. While it ruled that ASA does have jurisdiction over GFSA (and other NGOs), "...because the agents used to create and have the advertisement placed... were members of ASA," it deemed the advert to be non-commercial advertising constituting an expression of opinion. Unfortunately for the sake of further precedence setting, the Final Appeals Committee did not consider whether earlier ASA rulings violated GFSA's right to freedom of expression, having ruled in GFSA's favour.