Cell C’s appeal against an Advertising Standards Authority of South Africa (ASA) ruling that its 99 Cents for Real ads made disparaging remarks about MTN’s Zone and Mahala Thursdays promotion was unsuccessful.
Last year, MTN through Webber Wentzel Attorneys, lodged a successful competitor complaint against Cell C’s 99 Cents for Real advertisements which poked fun at MTN’s Zone product and MTN’s Mahala Thursdays promotion.
Cell C’s radio commercial features an artist in an American accent, saying: “Whari doo. Some people can only make calls from Zone 1 eKasi to Zone 3 for cheaper, only one day of the week? That’s not kwa!”.
“Now you can call any network, any time, any place, for only 99c per minute on per second billing,” the commercial continues.
MTN Zone and Mahala Thursdays are cool: MTN
MTN complained that the Cell C commercial makes disparaging remarks about MTN’s “Zone” product and its “Mahala Thursdays” promotion.
According to MTN, Cell C’s commercial contains factually inaccurate information, and incorrectly groups MTN’s products as one.
MTN is also unhappy that Cell C said that its MTN Zone and Mahala offers are not “kwa” – aka cool.
We are playing by the rules: Cell C
Clear Copy, on behalf of Cell C, responded by saying that when MTN chose to use ordinary words to describe its products they ran the risk that those words can be used to have a secondary dig at them in advertising.
“It is permissible in terms of the ASA Code to have a dig at competitors as a secondary communication in an advertisement,” Cell C argued.
“The commercial does not reference MTN or any specific product offering. There is in fact nothing disparaging in the radio commercial itself,” said Cell C.
ASA ruling against Cell C
The ASA said that a hypothetical reasonable person will associate “zone”, “only one day of the week”, and “Ayoh, yoh, yoh, yoh, yoh” with MTN and its products.
The ASA also felt that Cell C’s radio commercial disparaged MTN’s products. It is therefore in breach of the code that an advertisement should not “attack, discredit or disparage other products, services, advertisers or advertisements directly or indirectly”.
The ASA ordered Cell C to withdraw the commercial with immediate effect, and not use it again in future.
Cell C appeal and ruling
Cell C appealed the ruling in September 2012, arguing that there is a grey area on rulings on disparagement in that “a gentle dig” is permitted – in particular where there is a play on a word that has an ordinary meaning but can have a secondary meaning.
Cell C added that the change in industry norms should have an impact on the way the advertising code is interpreted.
The ASA Tribunal was not convinced, saying that advertisements must be judged as a whole. “‘Ayo! yo! yo!’ followed by ‘Yeah I said it’ with ‘that’s not Kwa’ clearly do not add value to the brand but gives the distinct message that a competitor’s product should be discarded,” the ASA said.
The ASA Tribunal accordingly dismissed the appeal.