Lexology Getting The Deal Through: Advertising & Marketing 2021 (South Africa)

Legal framework

What are the principal statutes regulating advertising generally?

Advertising in South Africa is largely a matter of self-regulation, which is regulated by the Advertising Regulatory Board (ARB), a non-profit organisation established by advertising and marketing stakeholders, including the Marketing Association of South Africa, the Association of Communication and Advertising and the Internet Advertising Bureau. The ARB regulates advertising in South Africa in accordance with the Code of Advertising Practice (the Code), which prescribes the advertising standards that must be followed by advertisers in South Africa. The ARB performs the self-regulatory function previously performed by the now liquidated Advertising Standards Authority of South Africa (ASA), and has done so since 2018.

The ARB is established by various industry associations and leaders of the advertising industry and derives its powers from its constitutional documents, to which its members, and their members, are bound. The Code is therefore a voluntary instrument that does not legally bind any persons who are not members of the ARB. Similarly, the ARB's decisions and rulings do not have a binding effect on non-members, unless non-members voluntarily consent to its jurisdiction and to participate in its proceedings. That being said, its membership comprises various associations of advertising media owners, advertising agencies and marketing firms, whose members have agreed to be bound by the ARB's decisions and that are significant role players in the advertising vale chain.

There are also legal restrictions on advertisements in various pieces of national legislation, including the Consumer Protection Act 2008 (CPA), the Tobacco Products Control Act 1993, the Liquor Act 2003, the Medicines and Related Substances Act 1965, the National Gambling Act 2004 and various provincial gambling and gaming statutes.

In addition, the Electronic Communications Act 2005 (ECA) binds all broadcasting licensees to adhere to the Code as determined and administered by the (erstwhile) ASA from time to time. The binding effect of these provisions is currently unclear in light of the ASA's liquidation. It should be noted, however, that the ARB was established to administer the Code in substantially the same manner that the ASA did.

Regulators

Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?

The ARB is the primary self-regulator that administers the Code and the only regulator with advertising as its primary focus. The ARB administers a voluntary code and does not have inherent jurisdiction over non-members, or persons who have not voluntarily submitted to the ARB's jurisdiction.

That being said, section 55(1) of the ECA requires all broadcasting licences to adhere to the Code and to any advertising regulations passed by the Independent Communications Authority of South Africa (ICASA) in respect of the scheduling of advertisements, infomercials and programme sponsorships on broadcast media. It may be argued therefore that the Code is legally enforceable, at least against broadcasting licensees. In any event, the National Association of Broadcasters, whose membership comprises the majority of the broadcasting licensees in South Africa, is a member of the ARB and has voluntarily bound itself to the Code.

The ECA empowers the Complaints and Compliance Committee (CCC) of ICASA to adjudicate complaints concerning alleged breaches of the Code by broadcasting licensees who are not members of the ARB. The ECA also requires ICASA to deal with any broadcasting licensees that are found to have breached the Code in terms of its own complaints procedures and impose the sanctions available to it following its complaints procedures.

The CPA establishes the Consumer Commission as the consumer protection regulator, which may receive and investigate complaints that any person has acted inconsistently with the provisions of the CPA, including the provisions that seek to protect consumers against bait marketing and misleading advertisements.

There are various other regulators established that enforce various other laws and regulations that have subsidiary advertising regulations, such as gambling regulators, legal practice regulators, and health and pharmaceutical product regulators. Unlike the ARB, these regulators are not focused on advertising matters.