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Advertising Rights Digest - Arm yourself with knowledge

Published on 12 May 2011

A huge dilemma regarding free speech is looming
26 May 2010

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On the one hand the court says a cartoon depicting the prophet Mohammed is OK and on the other hand ASA says a billboard with a Bible text contravenes the ASA code, because it insults the atheists.

These positions are contradicting but are they really different? According to Muslim leaders the Koran forbids depicting the prophet. A cartoon depicting him they claim insults their religion. In the same week the ASA rules that a billboard quoting a Bible text saying "The fool says in his heart: There is no God"� is insulting the dignity of atheists and should be removed. This seems to be a clear contradiction.

South Africa does not have any law against blasphemy. Therefore the Muslims do not have a case as blasphemy does not form part of the hate speech exclusion to freedom of expression. The ASA code, on the other hand, prohibits advertising that attacks the dignity of others.

But what would the ASA have done if the Muslims brought the case to them? (Let us assume for an instant that the cartoon was used in an advertisement, because cartoons are not covered by the ASA code). The ASA would have had to rule that the advertisement should be removed, because it infringes the dignity of others. What would the court have done with the billboard case? They would have dismissed it based on the principles of free speech.

This contradiction is intolerable as it creates legal uncertainty. It is easy to say that the courts are rights and ASA is wrong. The question, however, is: which one is better for a democracy that has different religious beliefs? Insulting religion is something that may threat democracy and should be dealt with carefully.

There will invariably be differences in morality between different religions and between religious people and atheists. But nobody's morality can be enforced upon everybody. The current situation clearly favours the atheist.

It boils down to this: the atheist can draw cartoons as he likes and he will have billboards taken down that depict him as a fool. This is not satisfactory as religious people will certainly object. The state is secular, which means it cannot favour any religion. But atheism is a certain belief which seems to be favoured by the state machinery. This is a tricky situation and it needs careful consideration, Perhaps even legislation?

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