PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL, 1999
COMMENTARY BY THE ADVERTISING STANDARDS AUTHORITY OF SOUTH AFRICA
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
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.
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:
8.1 Clause 1 (xvii): The inclusion of "any other recognised ground" creates huge uncertainty as to its exact meaning.
8.2 A great number of clauses (Clauses 14, 17, 20, 22, 23, 26, 32, 34, 35, 38 and 41) prohibits unfair or unreasonable discrimination "in any manner" followed by the words, "including the following ......" followed by a number of paragraphs dealing with specific situations. In some cases - for instance Clause 38 (2)(f) - a specific paragraph implies that the situations mentioned in the paragraphs preceding it are inherently unfair. It should be made very clear in the wording that each situation mentioned should be subjected to the test of whether it is unfair.
8.3 The use of the words "unfairly" and "unreasonably" creates uncertainty. The Constitution uses the word "unfair" and in the interest of legal clarity it is proposed that "unfairly" should be used consistently and exclusively.
8.4 The use of the concept "work of equal value" in Clause 14 (f) can create great uncertainty.
9. The AHI is fundamentally opposed to the draconian provision contained in Clause 43 which stipulates that there can be no defence of "reasonable and justifiable" unless the person affected "cannot be accommodated without unjustifiable hardship". This provision undermines market forces and will impact very negatively on economic activity and impede foreign and domestic investment.
10. The duty which is imposed by Clause 4 (2) on "non governmental service providers" - which we assume to include private sector bodies - to provide legal assistance "within their resources", in effect imposes a discriminatory burden on those organisations. A burden of this nature should lie on the body of taxpayers as a whole, and not on a few individual organisations.
11. The AHI is also concerned as regards the power given to the Minister in Clause 53 (2) to designate certain judges as presiding officers of equality courts. Such power should at least be subject to the recommendation or approval of the Judicial Service Commission.
12. It is also submitted that the burden of proof provided for in Clause 45 should not go further than that provided for in section 9 (5) of the Constitution.
13. The AHI is a member of Business South Africa and supports the submission made by that body.
14. The AHI therefor specifically proposes that:
14.1 the Bill only deal with the prevention/prohibition of unfair discrimination and not with the promotion of equality.
14.2 the Parliamentary process be interrupted to allow Nedlac to first deal with it and report to Parliament.
AIDS Law Project
17 NOVEMBER 1999
AIDS LAW PROJECT SUBMISSION ON THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
DRAFTED BY FATIMA HASSAN
(ATTORNEY AND DEPUTY HEAD)
"Never, never again shall this beautiful land experience the oppression of one by another" (Nelson Mandela 1994)
The AIDS LAW PROJECT (ALP) welcomes the Promotion of Equality and Prevention of Unfair Discrimination Bill ('the Bill') and especially its scope and intent to prohibit unfair discrimination and promote equality. Once passed by parliament, the Bill will represent the most significant piece of legislation since the Constitution to address issues of equality and the elimination of unfair discrimination in our society.
HIV is a physical impairment. It is a virus that continuously replicates in the body and impacts on both the psychological and physical well being of a person living with HIV. HIV also impacts on major life activities, such as reproduction and sexual relations. However illness \ es directly associated with HIV often takes many years to develop. A person living with HIV is fit and productive. Despite this, society often incorrectly perceives persons living with HIV as unfit and unproductive.
Current figures estimate that 3.5 million South Africans are infected with HIV. However experts suggest that less than 10 % of the total number of people living with HIV/ AIDS (PLWHA's) are aware of their HIV status. Further, the number of persons with HIV in SA is expected to reach 4 million by the year 2000. At present, it is also estimated that 1500 new HIV infections occur daily.(1)
But the scale of the HIV and AIDS epidemic does not end with increasing rates of infection. The epidemic is matched by a concurrent epidemic of unfair discrimination against PLWHA's.
CLIMATE OF DISCRIMINATION
Since the drafting of the Constitution in 1994, the HIV epidemic has become a national emergency, one which the government, private sector and civil society is only now turning its full attention to. This is apparent from the Partnership Against AIDS (PAA) initiative launched last year and the formation of the Inter-Ministerial Committee (IMC) on HIV \AIDS. (2) SA faces the challenge of preventing and reducing new HIV infections but is also expected to foster acceptance, openness and respect for the equality and dignity of PLWHA's in a society that is often hostile and not accepting of PLWHA's.
Human rights abuses and the denial of equal access to public and private resources characterise the social response to HIV \ AIDS and the treatment of PLWHA's. While discrimination against PLWHA's has traditionally occurred in the denial of access to public and private resources, services or accommodations, it also occurs through the stigmatization and marginalization of PLWHA's.
Ironically, as the AIDS epidemic and its associated economic, social, political and legal effects intensify, so does unfair discrimination against PLWHA's. The value of human rights of PLWHA's are secondary to widespread "AIDS prejudice" borne out of fear and ignorance
For example, during December 1999, the death of the murdered AIDS activist Gugu Dlamini will be commemorated. Gugu Dlamini was a KZN NAPWA member who publicly disclosed her HIV status. During December 1998 Gugu Dlamini was attacked by an unknown group of people. She was accused of shaming her community by disclosing her HIV status. To date, there has not been any substantial progress with the states criminal prosecution of her murderers.
But the murder of Gugu Dlamini is just one extreme example of the levels of violence and the nature of discriminatory attitudes against PLWHA's in our society. Unfortunately, to assume that our newly established Constitutional democracy translates into tolerance and respect of the legal and human rights of PLWHA's is foolish and mistaken. In this respect attached is a paper entitled "Human Rights Violations of People with HIV/AIDS: The implications for Equitable Development in Southern Africa".(3) Attached is a copy marked ALP 1.
THE NEED FOR EXPLICIT HIV \ AIDS PROTECTION
To effectively protect the rights of PLWHA's the Bill must provide explicit protection for PLWHA's. Further, the Bill must ensure that positive steps are taken to protect PLWHA's from unfair discrimination by seeking to deter such unfair discrimination. The Bill must take into account the nature of the group that it should protect by ensuring that the remedy it provides is both accessible and effective.
Regretfully the Bill does not list HIV \ AIDS as a prohibited ground nor is HIV \AIDS explicitly defined as a disability for the purposes of the Bill.(4) Ironically, there is only one reference to HIV \AIDS in the Bill, that is, in Section 26 (d) under the 'Prohibition of unfair discrimination in provision of insurance services'.(5)
With an epidemic of such magnitude, the near total omission of HIV \AIDS from the Bill is unfortunate, ill advised and unhelpful.
This is because in the face of alarming national, regional and international trends of human rights abuses of PLWHA's, explicit protection against unfair discrimination on the basis of HIV/ AIDS is urgently required.