South Africa's stricter advertising laws explained

On June 27, 2023, the Independent Communications Authority of South Africa (ICASA) published the Advertising, Infomercials and Programme Sponsorship Regulations (“the Regulations”) in terms of the Independent Communications Authority of South Africa Act No. 13 of 2000 and the Electronic Communications Act No. 36 of 2005 (ECA). The Regulations will come into force on 27 December, 2023.

Purpose

The purpose of the Regulations is to balance the ability of broadcasters to generate revenue from sponsorships, infomercials and advertising and the need to protect consumers from excessive advertising.

Scope

The Regulations are binding on all broadcasting service licensees, being all persons to whom a broadcasting service license has been granted in terms of ECA. This includes persons who offer a broadcasting service through radio and television and will be referred to as “broadcasters”. The Regulations do not apply to online media and streaming services, as ICASA does not have authority in those areas.

The Regulations seek to regulate the scheduling of advertisements, sponsorships and infomercials as opposed to the content thereof.

Code of Advertising Practice

Section 55 of the ECA provides that all broadcasters must adhere to the Code of Advertising Practice (“the Code”), which is administered by the Advertising Regulatory Board (ARB). The Regulations provide that if there are any inconsistencies between the Regulations and the Code, the Regulations shall prevail.

The Regulations, which are administered by ICASA, focus on the scheduling of advertisements, infomercials, and sponsorships, whereas the Code focuses on the content of them. Although the ARB is a self-regulatory board and members voluntarily agree to be bound by the Code, Section 55 of the ECA makes it mandatory for all broadcasters to adhere to the Code.

ICASA and the ARB have a memorandum of understanding which sets out how these two entities will work together. If a broadcaster is a member of the ARB, then the ARB will be able to hear a complaint regarding the breach of the Code.

If the broadcaster is not a member of the ARB, then the complaint must be heard by ICASA. Regardless of whether a broadcaster is a member of the ARB, if found in breach of the Code, the broadcaster must be dealt with in terms of the ICASA Act.

In this way, it is clear that the Regulations and the Code, although having different focal points, are complementary and have the same purpose, i.e., protecting the consumer.

Advertisements, infomercials and programme sponsorship

The regulations clearly define and distinguish between advertisements, infomercials, and programme sponsorship, which are each regulated differently. The Regulations have maintained most of the provisions from the previous 1999 Regulations.

Infomercials

“Infomercials” mean material of more than two minutes duration, broadcast in visual and/or audio form, for which the broadcaster receives a consideration, in cash or otherwise.

It is usually presented in a programme format, and promotes the interests of any person, product, or service, with a direct offer of a product or service to a member in return for payment.

Infomercials usually contain a demonstration of the use of the product or service concerned and include material commonly known as teleshopping, home shopping, direct marketing and/or direct sales.

The Regulations provide that infomercials must not be transmitted during prime time (18h00–22h00 everyday) or during the transmission of any children’s programme. Strong arguments were made by broadcasters against the deregulation of prime time.

However, ICASA took the view that prime time is a period when most audiences are watching or listening to their broadcast stations, and the regulations seek to prevent normal programming from being overly interrupted.

All broadcasters must ensure that all their infomercials are labelled and presented in a manner that makes it clear to consumers that such infomercials do not constitute programme material.

No channel may transmit infomercials for more than two cumulative hours during 05h00–23h00 in any one day. It is important to note that this provision relates to “cumulative hours” throughout the day as opposed to consecutive hours.

The restrictions relating to infomercials, however, do not apply to any channels dedicated to infomercials or tele-shopping.

Programme sponsorship

“Programme Sponsorship” is defined to mean the direct or indirect financing, whether partial or total, of the production or transmission of broadcast programme material by an advertiser or person with a view to promoting its own or another person’s name, trade mark, image, activities, or product.

The regulations provide that a broadcaster must retain editorial control of the sponsored programme. The broadcaster is obliged to enter into a written sponsorship agreement that specifically provides that the sponsor will not be entitled to influence the content or scheduling of the sponsored programme.

The purpose of these provisions is to ensure that programmes are not biased towards the sponsor, and that the broadcaster maintains editorial integrity.

Broadcasters are prohibited from accepting a programme sponsorship in respect of any news or current affairs programme. News and current affairs programmes consist of discussions that are supposed to be fair and impartial, and the Regulations seek to prevent sponsorships from tainting the independence of such programmes.

Weather forecasts or sports bulletins that form part of the news are not subject to this prohibition and can be sponsored.

Where programmes are sponsored, any depiction of the name or logo of the sponsor must be subordinate to the content of the programme material to ensure that it is not given undue prominence.

A broadcaster must clearly state the nature of the sponsor’s association with the sponsored programme, preferably by using descriptions such as “sponsored by” or “in association with”.

A broadcaster is prohibited from accepting a sponsorship from any person who is prohibited by legislation from broadcasting any advertisement, infomercial, or marketing material.

Product placement

“Product placement” means the depiction of, or a reference to, a product or service in material (other than an advertisement) broadcast, in visual and/or audio form, in respect of which a broadcaster and/or the producer of the material received payment or other consideration, and which promotes the interests of any person, product or service.

A broadcaster must not permit any product placement in any news or current affairs programme. If product placement is used in other programming, it must be subordinate to the content of the programme, and the product placement must be signalled clearly at the end of the programme.

The purpose of these provisions is to ensure that consumers can distinguish between normal programming and product placement, which is paid for.

Broadcasters are required to separate editorial content from commercial messages, and ICASA can monitor the number of commercial messages within normal programmes to ensure that commercial messages are not overtaking the editorial content.

Penalty

The 1999 Regulations did not include any penalties for contraventions of the regulations. The new Regulations provide that broadcasters who contravene the key provisions are liable to a fine not exceeding ZAR1,000,000 ($51,898).

The fine payable will be proportionate to the seriousness of the contravention. As a result of the substantial penalties, ICASA delayed the implementation of these regulations for 6 months from publication to allow broadcasters sufficient time to ensure compliance.

Alissa Naran is a partner and qualified trademark practitioner at Adams & Adams. She can be contacted at: alissa.naran@adams.africa