Advertising Self-Regulation in SA
The SA Supreme Court of Appeal (SCA) ruled that the Advertising Regulatory Board (ARB) is entitled to consider and make decisions on the advertising of non-members and guide its members accordingly. This followed a fierce legal battle that overturned a recent High Court judgment where a judge had ruled that the “public powers which are assumed by the ARB in relation to the regulation of the advertising of non-members” are “unconstitutional” and “not sourced in law”. For lawyers, the SCA’s judgment is to be found in the case of Advertising Regulatory Board NPC and Others v Bliss Brands (Pty) Ltd which was handed down on 12 April 2022 and clarifies the ARB’s place and powers in South African law.
This is an important ruling in favour of self-regulation by the marketing sector. For ecommerce companies, any claims or promotions which appear either on their websites or in advertisements fall under the Consumer Protection Act of 2011. This Act encourages self-regulation by the marketing fraternity and encouraged the activities of the Advertising Standards Authority (I used to sit on the ASA’s Appeals Committee). However, financial restraints lead to the demise of the ASA a few years ago. The ASA was replaced by the ARB, which deals with complaints from competitors. Therefore, if you feel your competitor is advertising unfairly or is attacking your Intellectual Property by, for example, copying your brand/products look and feel, then you can complain to the ARB (https://arb.org.za/) secure in the knowledge that the courts should now recognise its right to pass rulings under the self-regulatory system.
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