The Advertising Regulator is simply doing the court’s job

The high court ruling this week that the Advertising Regulatory Board (ARB) is functioning in an unconstitutional manner when ruling on companies which are not its members has focused attention of the whole concept of “advertising censorship”.

The ARB has good intentions – to protect members of the public from false or misleading marketing claims.

However, the ARB has been used to fight commercial battles, which are more appropriately settled in courts of law.

Issues of brands “passing off” their products, or branding – by being confusingly close to that of a competitor – are commonly brought up in the forum.

These are issues of an intellectual property nature and should be settled in a court, not by a body which can pass draconian censures on those found guilty of violating the advertising code of conduct.

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What makes this particularly troublesome – especially in a country committed to democracy and human rights – is that such effective “guilty” findings and punishments (which usually include bans on member publications or platforms accepting advertising from the “guilty” party) have not been arrived at by a legally competent tribunal.

The case in which the court ruled against the ARB was a “David and Goliath” tussle between a local manufacturer of household cleaners, Bliss, and multinational giant Colgate-Palmolive.

Bliss does not belong to the ARB and was aggrieved that ARB’s member media houses would be forced to refuse to carry its advertising because of the ARB’s original ruling against it.

Another issue which needs to be discussed is the wide power the ARB has to effectively ban advertisements, often done after complaints from less than a handful of members of the public.

Apart from the chilling effect this can have on creativity, the reality is that’s not democratic, either.

The court ruling is an opportunity to rethink the whole concept.