Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]


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NamePromotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
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Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]

Advertising Standards Authority

Afrikaanse Handelsinstituut (AHI)

AIDS Law Project

American Chamber of Commerce in SA

Banking Council

Bham, M

Black Sash

British Chamber of Business

Business South Africa

Centre for Applied Legal Studies (Gender Research Project)

Centre for Applied Legal Studies (Labour Project)

CARAS Trust

Commission on Gender Equality

Community Law Centre (Gender Project)

COSATU

Deaf Federation of South Africa (DEAFSA)

Equality Alliance

FEDUSA

Financial Services Board

Freedom of Commercial Speech Trust

Freedom of Expression Institute

Free Market Foundation

General Council of the Bar

Health Department

Human Rights Committee

IDASA

Institute of Retirement Funds

Johannesburg High Court

Koinonia Centre

Life Offices' Association

Malamulela Social Movement for the Unemployed

National Association of Broadcasters

National Association of Democratic Lawyers (NADEL)

National Coalition for Gay and Lesbian Equality

National Institute for Public Interest Law and Research

National Newspapers

Print Media Association

South African Council of Churches

South African Chamber of Business

South African Human Rights Commission

South African Institute of Race Relations

South African Insurance Association

South African Jewish Board of Deputies

Winnie Mandela Residents Association

Women's Legal Centre & Socio-Economic Rights Project, UWC (23/11/99)

Women's Legal Centre & Socio-Economic Rights Project, UWC (17/11/99)

_________________________________________________________________________

Advertising Standards Authority

PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL, 1999
COMMENTARY BY THE ADVERTISING STANDARDS AUTHORITY OF SOUTH AFRICA
INTRODUCTION

The Advertising Standards Authority of South Africa (" the ASA") agrees with, and underwrites, the principles as set out in the Preamble to the Bill. Insofar as the content of advertising is concerned, the ASA offers its services in ensuring that these principles are effected and applied.
Self-regulation involves the establishment of a regulatory body by the industry and, if possible, consumers, which body then performs an administrative and adjudicative function in regard to complaints about the content of advertising. The body generally operates according to a defined Code of Practice. Internationally, there is a degree of harmony between the Codes used by different countries. Most, like the South African Code, are based on the principles set out in the International Code of Advertising Practice, developed by the International Chamber of Commerce.
To the extent that advertising is regulated in South Africa at present, such regulation takes the form of voluntary self-regulation, with the exception of electronic advertising, which is regulated to an extent by the Independent Broadcasting Authority ("the IBA"). In respect of the content of advertising, section 57 of the Independent Broadcasting Authority Act of 1993 ("the IBA Act") requires all broadcasting licensees to comply with the Code of Advertising Practice ("the Code"). The Code was drafted with the intention to protect the consumer and to ensure fair competition amongst advertisers. The Code effectively regulates the content of not only broadcast advertising, but all advertising in South Africa.
The ASA is an independent body set up and paid for by the advertising industry to ensure that its system of self-regulation works in the public interest. It has an independent President, currently Mr Mervyn King S.C.
The ASA has 22 member bodies, namely:
Association of Advertising Agencies

Association of Marketers

Association of Unit Trusts, The

Cinemark (Pty) Ltd

Cosmetic Toiletry & Fragrance Association of South Africa

Direct Marketing Association of Southern Africa

Franchise Association of Southern Africa

Furniture Traders’ Association of South Africa

Grocery Manufacturers’ Association

Health Products Association of Southern Africa

Hospital Association of South Africa

Industry Association for Responsible Alcohol Use

Information Technology Association

Motor Industries Federation

National Association of Broadcasters of South Africa

Outdoor Advertising Association of South Africa

Pharmaceutical Manufacturers’ Association of South Africa

Print Media Association of Southern Africa

Printing Industries Federation of South Africa

Sales Promotion and Design Association

Specialist Press Association

Timeshare Institute of Southern Africa
The Code binds all ASA members. A typical example of an ASA sanction is that an advertisement is, on the finding of a contravention of the Code, amended or withdrawn by the particular member with immediate effect, material deadlines permitting. Should the ASA find against a broadcaster, it may report this decision to the Broadcasting Monitoring Committee of the IBA, which would advise the IBA Council on a sanction.
COMMENT ON SECTIONS WHICH RELATE TO ADVERTISING

The two relevant sections in the Bill, which have a bearing on advertising, are:
“6(2) No person may -
(b) publish or display any advertisement or notice, that indicates or could reasonably be understood to indicate an intention to unfairly discriminate.”
“14 No person may unfairly or unreasonably discriminate against any person in any manner, including the following:
(a) By advertising in a manner which unjustly excludes or disadvantages potential applicants from any group of persons.”
The question, which arises in connection with the above two sections, is whether the provisions are unnecessarily wide in the light of the provisions of the Code. It is submitted that, insofar as the content of advertising is concerned, the Bill should be amended to cater for the ASA to serve as the first port of call for the investigation and adjudication of complaints pertaining to advertising content insofar as discrimination is concerned. It is now generally accepted that self-regulation works best within the framework of statute law, to define broad principles and to act as a last resort in cases where all else has failed. In handling the detail of advertising content, particularly those "important trivia" which matters very much to consumers, self-regulation has advantages of speed, flexibility and affordability which detailed legislation cannot equal. The law and self-regulation complement each other, rather like the frame and strings of a tennis-racket, to produce a result which neither could achieve alone. This proposal will lessen the financial burden to the fiscus, as the ASA is funded by the advertising industry.
Clause 3.4 of Section II of the Code provides as follows:
“Susceptibilities of consumers

Advertisements should not contain anything which offends the susceptibilities of consumers.
In particular claims or statements which, directly or by implication, discriminate or exploit on the basis of race, ethnicity, gender or religion will not be permitted unless, in the opinion of the ASA, the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”
Even a superficial perusal of the said clause 3.4 will, with respect, make it abundantly clear that the Code caters for the interests which sections 6(2)(b) and 14(a) wish to protect. Copies of ASA rulings in this regard are attached hereto marked "A", "B" and "C".

The particular benefit of the ASA procedure is that it leads to speedy redress. For example, even the controversial Charlize Theron "SA Men" commercial on male sentiments about rape, was concluded within a month - and it included hearings by the Advertising Standards Committee and the Appeal Committee. Even if procedures are made informal before the Equality Courts and some speed is built into the procedure, it is highly unlikely, that a matter will be concluded within a month. The very nature of advertising demands speedy action; a mechanism which is not always available to a court but is within the reach of the ASA.
It is submitted, accordingly, that the said sections of the Bill should be amended to reflect the ASA as the first port of call. As the law and self-regulation complement each other, such amendment will produce a result that neither could achieve alone. This proposal allows for a partnership between government and the private sector in the regulation of advertising content. A time-honoured and tested procedure exists before the ASA and this procedure meets the section 36 standards set by the Constitution, which requires that less restrictive measures should be sought. An industry based restriction which has been agreed to voluntary by the media and commerce, is always less restrictive than a statutory restriction. The latter amounts to an obligation imposed by the state, whether the media and commerce agreed to it or not. The record of the ASA is, however, a good one; its measures being supported by its members over a wide range within commerce and the media.
It is proposed that wording to the following effect be included in the Bill:
“Where a person is aggrieved by advertising which he or she believes to be unfairly discriminatory, such complaint shall in the first instance be referred to the Advertising Standards Authority of South Africa for investigation and adjudication, in accordance with its Code and procedures”.
COMMENT ON THE TERM "ADVERTISING" NOT BEING DEFINED

It is submitted, with respect, that the inclusion of a definition for the term "advertising" will bring about greater certainty and clarify as to the scope and application of sections 6(2)(b) and 14(a) of the Bill.
The definition of advertising, as found in the Code, is internationally accepted. Furthermore, by way of section 57 of the IBA Act, this definition is accepted by law.
The Code defines advertising as follows:
“Advertisement” means any visual or aural communication, representation, reference or notification of any kind which is intended to promote the sale, leasing or use of any goods or services, or which appeals for or promotes the support of any cause. Display material, menus, labels, and packaging fall within the definition. Editorial material is not an advertisement, unless it is editorial for which consideration has been given or received.”
It is accordingly submitted that the definition for advertising, as set out in the Code, be included in section 1 of the Bill.
CONCLUSION

The question, which arises in connection with sections 6(2)(b) and 14(a), is whether the provisions are unnecessarily wide in the light of the provisions of the Code. It is submitted that, insofar as the content of advertising is concerned, the Bill should be amended to cater for the ASA to serve as the first port of call, as per paragraph 13 above. The law and self-regulation complement each other to produce a result which neither could achieve alone. Furthermore, it is submitted, with respect, that the inclusion of a definition for the term "advertising" will bring about greater certainty and clarity as to the scope and application of sections 6(2)(b) and 14(a) of the Bill. The definition for advertising, as set out in the Code, should thus be included in section 1 of the Bill.
Insofar as the content of advertising is concerned, the ASA offers its services in ensuring that the principles as set out in the Preamble to the Bill are effected and applied.
THE ADVERTISING STANDARDS AUTHORITY OF SOUTH AFRICA

17 November 1999
Afrikaanse Handelsinstituut (AHI)

SUBMISSION BY THE AHI ON THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL (B57 - 99)
17 NOVEMBER 1999
1. The AHI strongly supports the Constitutional principle that unfair discrimination be prevented or prohibited. Section 9(4) read together with Schedule 6 of the Constitution requires national legislation to be enacted by 3 February 2000 to prevent or prohibit unfair discrimination.
2. The AHI, however, wishes to record its very strong objection to the lack of proper interaction with the business community during the drafting process and the pressure now being brought on all concerned due to time constraints. The AHI also shares the view that legislation of this nature should first be dealt with in the Nedlac process before submission to Parliament so as to comply with the Nedlac Act.
3. The AHI draws attention to the difference between economic growth and development. The latter is dependent upon the motivation and trust of the total population to remain or become increasingly involved in business and community development. Departmental initiatives and Bills should be aimed at mobilising the total community in this cause.
This Bill does the opposite in that it would actually reduce the entrepreneurial spirit and energy of the AHI-membership.
4. The Bill, however, goes much further than the prevention or prohibition of unfair discrimination by introducing a number of provisions dealing with equality. Such provisions are not subject to the time constraint imposed by the Constitution and should, in our submission, at this stage be removed from the Bill having regard to the drastic implications thereof on the business community as well as South African society as a whole. Legislative or other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination, may be taken at any time (see Section 9(2) of the Constitution) but in our opinion such measures should be well defined and targeted and only follow comprehensive consultation with interested parties.
5. The AHI is also extremely concerned that the Bill, if not properly amended, will cause vast harm to the South African economy. The AHI is convinced that economic inequalities should be reduced by uplifting the poor, and that a higher level of economic growth is the key to achieving greater prosperity for all. An expanding economy can create jobs as well as an expanded tax base. Such expanded tax base, in turn, enhances the Government's ability to further address social upliftment. The focus should be on economic development.
6. It should also be noted that to the extent that the Bill imposes additional burdens on entrepreneurs, including SME's, their ability to compete effectively in a market where tariff barriers have been lowered substantially, will be diminished.
7. The AHI is also extremely concerned that the Bill, if not properly amended, will cause harm by its blind obsession with the elimination of inequality evidenced in some provisions. An example is Clause 51 (4)(a) which creates the duty for Ministers to "eliminate any form of inequality in any law, policy or practice......". This is, with great respect, totally out of touch will reality. It would on a literal interpretation require ministers to abolish affirmative action legislation, as well as the progressive income tax because of the inherent inequality in their operation. It is submitted that this provision, amongst others, is unconstitutional. The solution, as has been stated above, is to remove the equality provisions from the Bill and deal with those different sectors where the need has been identified, in targeted and focussed legislation. This legislation should be drafted after proper consultation with interested parties and due consideration of its economic impact.
8. Uncertainty does not promote investment and business risktaking. Entrepreneurs require additional compensation to take on additional risk, and uncertainty is risk. It is therefore totally unacceptable for legislation to create an impediment to economic growth by vague and uncertain provisions. The following are but a few examples in the Bill under discussion:
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