FXI in support of Marie Stopes' abortion adverts

This results from a complaint lodged by the African Christian Action Group (ACAG) with the country's advertising watch-dog; the Advertising Standards Authority of South Africa (ASASA) that by using the words "safe" and "pain free", Marie Stopes was deliberately misleading the public and therefore contravening the Code of Advertising Practice. The group lost in their bid to have the words declared as "misleading" and "offensive" by the Advertising Standards Committee at the first hearing on November 26 2003 and subsequently appealed to the Final Appeal Committee (FAC). This appeal was heard today April 7 2004.

In a letter sent to Marie Stopes' legal team and copied to the FAC, the FXI stated that after closely examining the complaint lodged by ACAG against Marie Stopes' advertisements, it was of the considered view that the complaint lacks substance because it is grounded on an absolutist rather than a relative interpretation of the alleged offending words.

Furthermore, the institute said that the complainants/appellants apply what appears to be a "staid, stiff and mechanistic interpretation of the words 'safe' and 'pain free' and completely fail to take into account context as a key element in interpreting different forms of expression."

The institute argued that it found no merit in the appellants' assertion that the words "safe" and "pain free" as used by Marie Stopes are "absolute statements of fact" and therefore amount to "misleading" and "offending" claims. It said that such words must be construed in their ordinary meaning and the test to be used, as Marie Stopes has correctly argued, is that of the reasonable person.

The FXI said that no reasonable person would be misled into believing that the contested words pronounce in a peremptory sense, the fact that all abortion procedures are without exception one-hundred percent successful, or that there is not even the slightest degree of pain attendant to such procedures.

It went on to observe that since the words complained of do not constitute propaganda for war, incitement of imminent violence or hate speech, they fall within the protective threshold of the right to freedom of expression clause (section 16 of the Constitution). Any other restriction that may be allowed must adhere to the requirements of the general limitations clause of the Constitution meaning that the words "safe" and "pain free" can only be limited if it is "reasonable" and "justifiable" to do so, taking into account a string of factors including "the importance of the purpose of the limitation". Furthermore, the FXI said that the committee must consider whether there are other "less restrictive means to achieve the purpose" of informing women about the availability of pregnancy termination services.

Arguing that access to information for women who need to make a choice between continuing or terminating a pregnancy is crucial if they are to enjoy their Constitutional rights to equality, dignity and freedom and security of the person, the institute added that it was important for such information to be communicated in a clear, simple and easy to comprehend manner. It pointed out that when one considers that in rural areas literacy levels among women remain low, the necessity of alerting them to accessible safe services for terminating pregnancies need not be overstated.

The FXI said that for this reason, the clearest and most easily understood method of letting women know they can make use of secure and non life-threatening abortion services is by the use of words such as "safe" and "pain free". It added that it "did not see how 'more restrictive means' of communicating the same message can take place without defeating the very objective for which the words are meant achieve."

The organisation stated that given the very essential nature of the right to freedom of expression in a democracy, this right could only be limited after the most careful of considerations and only in tandem with the reasonable limits benchmarked by the Constitution. The FXI argued that:

"The right to freedom of expression is not only important in its own primary sense as a tool for enabling individuals to express their opinions freely, it also plays a facilitative role because as the Constitutional Court has so eloquently stated, it is part of a web "of mutually supporting rights".

It therefore makes the enjoyment of other fundamental rights and freedoms such as human dignity, equality and freedom, possible."

The FXI stated that considering the serious implications on the right to freedom of expression if the complainants arguments are allowed to succeed, it had been hopeful that its submission would be admitted directly by the FAC as grounds for opposing the applicants claims. However, in a telephonic conversation with the Advertising Standards Authority's Legal Affairs Manager Mr Stefan Vos on Monday 5 April 2004, the institute had been informed that this would only be possible by way of a formal amicus curiae (friends of the court) application.

The FXI said it found this requirement disconcerting because the Authority is meant to be an accessible, user friendly and less formal tribunal devoid of "strict legal formalism". The institute said it would raise the issue of access to the authority separately and at a later stage.

Judgement was reserved.