ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by both parties.
At the outset, it should be noted that xenophobia is in itself a discriminatory mindset and practice, and any advertising that encourages such behaviour would be regarded as irresponsible and concerning. Having said this, however, it must be noted that the issue at hand turns on whether or not the commercial is, in fact, encouraging such behaviour (as alleged by the complainants), or rather belittling or condemning it (as argued by the respondent).
To make this determination, the Directorate has to adopt a reasonable and objective approach, viewing the commercial from the perspective of the hypothetical reasonable person who is neither over-critical nor overly sensitive. Doing so allows the Directorate to attach a reasonable and balanced meaning to the commercial.
Clause 1 of Section II reads as follows:
“No advertising may offend against good taste or decency or be offensive to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Advertisements should contain nothing that is likely to cause serious or wide-spread or sectoral offence. The fact that a particular product, service or advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or service. In considering whether an advertisement is offensive, consideration will be given, inter alia, to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest”.
From this it is clear that the Code firstly allows for “justifiable” offence, and secondly that the Code distinguishes between serious, widespread and/or sectoral offence on the one hand, and subjective offence perceived by people on the other.
Similarly, Clause 3.4 of Section II reads:
“No advertisements shall contain content of any description that is discriminatory, unless, in the opinion of the ASA, such discrimination is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
It deserves mention that the clause also appears to allow for “justifiable” discrimination (refer Nedbank Eyethu / AE Ball / 2979 (14 October 2005) for example, where the practice of selling BEE shares was held as “justifiable” discrimination based on government policy and legal requirements). The clause also specifically refers to Section I, Clause 4.17, which contains the definition of discrimination. This clause defines discrimination as:
“... any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage on; or withholds benefits, opportunities or advantages from any person on one or more of the following grounds:
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, or any other analogous ground”.
It also clarifies that "discriminate" and "discriminatory" shall have corresponding meanings.
Accepting that, in some instances offence and discrimination may be regarded as “justifiable”, the Directorate considered the overall message of the commercial.
The humour and exaggeration is evident from the very start. This is best illustrated by the following examples:
The border fence which has been cut has an “ARRIVALS” sign next to it reminiscent of legitimate border destinations or airports which would ordinarily receive legitimate “foreign” visitors,
The examples of “all you foreigners” disappear in a puff of smoke when mentioned by nationality,
The long line at the “IMMIGRATIONS” office is actually in front of a tent / gazebo, intended to poke fun at the fact that many people are able to obtain fake ID documents by bypassing official processes,
The exaggerated stereotypical depictions of different nationalities such as, for example, the Kenyans who are shown running on the spot in a stationary line while wearing typical athletic attire (given Kenya’s reputation for producing exceptional distance runners); the “Nigerian” shown standing suspiciously close to a Mercedes Benz occupied by two “Europeans” (given the strongly held belief that Nigerians are often involved in drug-related matters in the country); the clouds of smoke and sitar music emanating from the Plaza when “... all you Indians” are mentioned (given that the Plaza is often associated with Indian shops) and the “Afrikaners” depicted as a farmer driving his bakkie on a farm with the dog on the passenger seat (given the jokes about “boere” behaving in such a manner),
The Khoisan representative stating “I’m not going anywhere, you *$&!@#* found us here”, complete with bleeped-out expletive and subtitles, and
The two meals that are swapped by means of a puff of smoke similar to that shown when the “foreigners” disappear.
The Directorate is satisfied that this falls within the parameters of hyperbole and/or harmless parody as allowed for by Clause 4.2.3 of Section II. This clause states that “Obvious untruths, harmless parody or exaggerations, intended to catch the eye or amuse, are permissible provided that they are clearly to be seen as humorous ...” This is also in line with the respondent’s reputation for poking fun at topical issues and current affairs.
What’s more, the commercial is clearly contrasting the “voice” of xenophobia (who starts the commercial off with mention that “... all you foreigners” should just “... go back to where you came from”), with the voice of “reason”, who explains that “REAL South Africans” (our emphasis) love diversity. This carries the implied message that the initial “voice” of xenophobia does not speak for “Real” South Africans.
In addition to this, if one views the entire commercial, it becomes apparent that the xenophobic voice and opinion is ridiculed and made to be irrational, because the point is made that all nationalities found here (save for the Khoisan) were once “foreigners”.
Put simply, the respondent juxtaposes the xenophobic view that “what’s wrong with South Africa” is “all you foreigners” with the rational and reasonable view that “what’s wrong with South Africa” is actually “all you xenophobes”. This is done in a tongue-in-cheek manner, and the ending voice-over explains that “REAL” South Africans “love diversity”.
For the above reasons, the Directorate is satisfied that the commercial does not contravene the provisions of Clauses 1 and 3.4 of Section II of the Code.
The complaints are accordingly dismissed.
