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Published on 12 May 2011

ASA's Ruling on MTN Is Possibly Unconstitutional
By Willem Krog *
18 Jan 2010

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In a ruling on 4 January 2010 the ASA ruled that MTN should submit all its advertising, irrespective of whether or not any reference is made to "Bafana Bafana"�, to the ASA Advisory Service for pre-clearance. This ruling infringes the right to commercial free speech and is unconstitutional.

Background facts

In 2008, the ASA ruled that an ad of MTN reading "TURNING YOUNG MEN INTO BAFANA BAFANA"� was an infringement of Article 11.1.1 of Section 10 of the Sponsorship Code. On 10 June 2009, MTN was found to be in breach of this ruling and MTN was sanctioned to have all advertisements referring to Bafana Bafana pre-cleared by the ASA before flighting. On 18 November 2009, MTN was found to be in breach of the 10 June 2009 ruling and the ASA invited submissions on the appropriate sanction and then made the ruling of 4 January 2010.

I am not expressing an opinion on the previous rulings, but only on the sanction given by the ASA on 4 January 2010.

Freedom of expression is protected by Section 16 of the Constitution and it includes commercial speech. Censorship (and specifically prior restraint to speech) is one of the practices that freedom of expression wanted to nullify due to its potential for abuse. Censorship or prior restraint for political speech is, therefore, universally condemned by free democracies. The same applies to prior restraints of advertisements. This was already acknowledged in The Hudson Gas case of the American Supreme Court during the 1960's. This case was quoted with approval by our own Constitutional Court on several occasions. Prior restraint of commercial free speech is only allowed in outdoor advertising where only the time, place and manner require prior approval, but never the content.

Article 13.6.2 of the Sponsorship Code allows the ASA to impose a prior restraint on advertisers called a pre clearance. This means that the advertiser must obtain the approval of the ASA before it may advertise its product or products. If the pre-clearance is not acquired, none of the media owners may accept advertising material from the advertiser concerned. It is in effect a censorship (or prior restraint) of advertisements. This is against the principle of commercial free speech and infringes Section 16 of the Constitution. Section 13.6.2 of the code is therefore unconstitutional and null and void (the legal debate is more involved, but I do not want to "make a Federal case of it"� as our American friends would put it).

This has some important consequences.

1. If the code is unconstitutional, then the sanction imposed is also unconstitutional. This makes the sanction null and void.

2. The request by the ASA to its members not to accept advertising material from MTN unless the ASA has approved it is unconstitutional and effectively bars MTN from advertising. This has two effects. Media owners who are ASA members may ignore the request without sanction from the ASA (or its member organisations). Secondly, the request is an infringement of MTN's right to commercial free speech and the ASA exposes itself to liability towards MTN.

It would not be fair to suggest what the ASA should have done. Apparently MTN is a serial offender of the Sponsorship Code and one certainly has sympathy for the frustration of the ASA. One can only speculate on how the case would have gone, if there were no ASA.

The complainants in the matter before the ASA are Vodacom and SAFA (South African Football Association). They would have to go to court to obtain an order against MTN in terms of the common law rights applicable to trademarks and other intellectual properties, as well as contractual rights that Vodacom may hold. Should they be successful, the court would interdict MTN to refrain from this action and that would be the end of the matter. Should MTN ignore the interdict, they could be jailed for contempt of court. One can safely assume that MTN would not opt for a jail sentence.

What the court could not do, however, is to impose a sanction that MTN cannot advertise unless the court approves its advertisements. That would comprise an unconstitutional order and the court would never transgress there. Therefore, if prior clearance is not an appropriate order for the court, it certainly cannot be an appropriate sanction for the ASA.

*Willem Krog is an admitted advocate of the High Court of South Africa and obtained a LLM in Constitutional law in 1993.

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