Vodacom Yebo4Less / Cell C / 12885
Ruling of the : ASA Directorate
In the matter between:
Cell C (Pty) Ltd Complainant(s)/Appellant(s)
Vodacom (Pty) Ltd Respondent
06 Jul 2009
In a ruling dated 5 March 2009, the Directorate ruled that the respondent’s use of the phrase, “UP TO” 99 FREE and “up to” 99% discounts in its advertising was in contravention of Clause 4.5 of Section II of the Code.
The respondent was instructed to withdraw the claims with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not use the advertisement in the same format again in future. The Directorate also referred the respondent to the provisions of Clause 15.5 of the Procedural Guide.
The respondent appealed this decision to the Advertising Industry Tribunal (the AIT). However, at the time of this ruling, the AIT ruling was still outstanding.
SUBSEQUENT TO THE RULING
The complainant submitted that while parties are awaiting the AIT decision, the Directorate’s decision remains binding. Despite this, the respondent still carries the following claims on its website
www.vodacom.co.za/services/yebo4less/yebo4less.jsp:
? Now you can get 99% off all calls to all networks; and
? Discounts of up to 99% of calls to all networks.
The respondent is therefore in breach of the Directorate ruling. The respondent should be ordered to withdraw the offending claims with immediate effect.
The complainant also requested sanctions to be imposed on the respondent. It submitted that the industry in which it operates is fast paced and dynamic and it is therefore unlikely that an advertiser does not frequently review its online advertising material for accuracy and currency. The complainant requested sanctions in terms of Clause 14.3 of the Procedural Guide for a period of three to six months; or once-off pre-clearance in terms of Clause 14.2 of the Procedural Guide.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
Given the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.
RESPONSE
The advertising agency Draft FCB, on behalf of the respondent, submitted that it made a concerted effort to comply with the Directorate’s instructions. It removed the print advertising complained of, as well as other advertising elements of the campaign. It was submitted that the Yebo4less campaign was originally launched in March 2008, and consisted of elements such as television, television stings, radio, cinema, print, outdoor, window banners, dump bin posters, leaflets, posters, tent cards, and T-shirts. All these elements have been withdrawn in accordance with the ASA Directorate ruling.
Upon receipt of the breach complaint, the respondent issued instructions to correct the website immediately and these changes are already effected.
Given the numerous and wide variety of advertising elements that had to be withdrawn, the respondent unfortunately and erroneously overlooked the claims on its website. However, it fully respects the ASA, its rulings and procedures and would not knowingly attempt to circumvent a ruling.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
The Directorate is tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling.
Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.
Clause 15.5 of the Procedural Guide states, “Offending advertising is to be withdrawn from every medium in which it appears, notwithstanding that the complaint did not specifically refer to that particular medium”.
While the Directorate acknowledged that the respondent have now taken steps to amend its website and to remove all offending claims, this action is belated.
It took the respondent three (3) months to realise the oversight due to the fact that a complaint was lodged. Had it not been for the complaint, the website could have remained unchanged in non-compliance with the Directorate ruling.
In light of the above, the respondent is in breach of the ASA Directorate ruling of 5 March 2009.
The Directorate notes that this matter has been appealed and the decision of the AIT is still pending. Therefore, should the AIT uphold the Directorate’s ruling, parties will be afforded opportunity to comment on whether or not appropriate sanctions should be imposed.
The breach allegation is upheld.
