ASA may rule on the advertising of non-members

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The ASA has traditionally held that while it cannot enforce rulings against non-members, it is obliged to consider complaints against them for the guidance of its media members – which include broadcasters, print and other media.

In 2016 this position was challenged, and the High Court found that the ASA could not rule against non-members, a decision which potentially left consumers exposed to unethical advertising.

However, the Appeal Court now confirmed the following:

1. The parties having agreed thereto, the appeal is upheld to the extent reflected in the substituted order set out below.
2. Save for paragraph 90.8, the order of the court a quo is set aside and substituted as follows

ʽ1. It is declared that:
1.1 The Advertising Standards Authority of South Africa (the ASA) has no jurisdiction over any person or entity who is not a member of the ASA and that the ASA may not, in the absence of a submission to its jurisdiction, require non-members to participate in its processes, issue any instruction, order or ruling against the non-member or sanction it;
1.2 The ASA may consider and issue a ruling to its members (which is not binding on non-members) on any advertisement regardless of by whom it is published to determine, on behalf of its members, whether its members should accept any advertisement before it is published or should withdraw any advertisement if it has been published.

2. The ASA is directed to include in its standard letter of complaint the contents of paragraph 1 and that a non-member is not obliged to participate in any ASA process, but that should it not participate, the ASA may still consider the complaint, for the purposes set out in paragraph 1.2.’

“We are delighted by this outcome,” says Gail Schimmel, acting CEO of the ASA. “It is essentially a return to our original position, and enables us to fulfil our contractual obligations to our members as well as our mandate to protect consumers from unethical advertising.”