The Supreme Court of Appeal confirms the ARB’s jurisdiction over advertising

Johannesburg, 2022-Apr-13

The Supreme Court of Appeal handed down a decision on 12 April 2022, confirming that the Advertising Regulatory Board (ARB) is entitled to consider the advertising of non-members, and issue decisions thereon, for the guidance of its members.

The decision follows protracted litigation, starting with Bliss Brands bringing a review application before the High Court, followed by the High Court making a finding that the jurisdiction of the ARB was “unconstitutional”, and finally coming to the comprehensive decision handed down by the Supreme Court of Appeal, confirming the ARB’s right, and the rights of its members, to make decisions about non-members.

The issue of review has been referred back to the High Court.

“We are delighted by the outcome,” says Gail Schimmel, CEO of the ARB. “This has been a long, hard road but we have been driven by the knowledge that our work is a vital part of consumer protection in South Africa. Our enormous thanks go to our legal team: Matthew van der Want (Fairbridges Wertheim Becker), Adv Steven Budlender, Adv Nick Ferreira, Adv Katherine Harding and Adv Karabo Mvubu. This team worked tirelessly to save self-regulation of advertising in South Africa.”

“The decision is important not only for the ARB but for all self-regulatory and voluntary bodies,” says Sadika Fakir, Chairperson of the ARB Board. “The Court has recognised the right of association that is exercised when entities join a self-regulatory association. But mostly, this victory is a victory for consumer protection, which is the driving force behind the work of the ARB.”

“We are very pleased by this victory for self-regulation in South Africa,” says Sibylle Stanciu-Loeckx, Director of the International Council for Advertising Self Regulation. “The principles in this decision that uphold the freedom of expression and the right of an industry to self-regulate in the public interest, are important principles for self-regulation all over the world.”

The full text of the judgement is available on request.

Queries can be addressed to gail@arb.org.za

Some key verbatim quotes from the decision:

• “This Court has repeatedly held that a failure to raise any objection to jurisdiction and subsequent participation in proceedings is sufficient to demonstrate submission to jurisdiction. Bliss Brands unquestionably submitted to the jurisdiction of the ARB. Although the appeal could be disposed of solely on this basis, we were urged by counsel for the ARB not to do so, because the high court’s pronouncements on the constitutionality of clause 3.3 of the MOI and its finding that the ARB may not issue rulings in relation to non-members or their advertising, will create legal uncertainty. This, in turn, will impede the ARB in carrying out its functions as a self-regulating body in the advertising industry.”
• “The ARB’s MOI and Code, incorporating its Procedural Guide, constitute empowering provisions. The mere absence of a statutory source for these powers is therefore no barrier to the ARB validly exercising public functions. To hold otherwise would invalidate the actions of all other private bodies that perform vital public functions in the public interest, without any empowering statute, such as sports professional bodies, the Press Council, professional associations and the like.”
• “. . . the ARB is entitled to consider, on behalf of its members, complaints in respect of advertisements published by non-members of the ARB, so that its members may make an election whether or not they wish to publish that advertisement. This is an incident of their constitutional rights to freedom of expression and association.”
• “The ARB’s members are entitled to refuse to publish advertising as part of their right to freedom of expression in s 16 of the Constitution, a right recognised in international law.”
• “The ARB’s power to consider complaints relating to advertisements by non-members for the benefit of its own members, advances the right to freedom of association. The Constitutional Court has held that the right of association, ‘enables individuals to organise around particular issues of concern’ and permits a group ‘to collectively contest and ameliorate the structure of social power within its midst’. This is precisely what the members of the ARB have done.”