The Advertising Standards Authority (ASA), which on Thursday found almost entirely in favour of Vodacom over complaints against its rival Cell C’s controversial new advertising campaign, will now consider sanctions against the smaller operator if it finds its “behaviour indicates a pattern of deliberate and/or flagrant abuse”.
This follows a request by Vodacom to consider sanctions against Cell C in light of the fact that there are “six adverse rulings against [Cell C] in the last 12 months”.
“First, however, the parties will be given an opportunity to comment on the issue of sanctions,” the ASA says. “The complainant [Vodacom] will first be given 10 days to comment, after which the respondent [Cell C] will be given 10 days to comment.”
Vodacom has taken issue with a series of new radio and television advertisements flighted by Cell C since last Friday. The ads take the mickey out of Vodacom’s decision to rebrand to the red corporate colours and imagery of its parent, the UK’s Vodafone. They also claim that Cell C has SA’s leading mobile broadband network.
According to the ASA, which regulates the advertising industry, Vodacom has said that Cell C “has been found to make inaccurate claims in many of the previous matters ruled against in recent months”.
It’s understood that the ASA, if it decides to impose sanctions, could require Cell C to seek its authorisation first before it flights any future campaigns.
“In addition, [Vodacom] pointed out that the campaign at issue is a clear and deliberate attempt to stifle the complainant’s new rebranding campaign, and is likely to be repeated in the weeks to come. This, coupled with the previous rulings, shows the respondent’s tendency to make use of opportunistic campaigns to gain maximum (undeserved) benefit knowing that such claims and actions contravene the [ASA’s] code.”
The ASA met urgently to consider Vodacom’s complaints and on Thursday found almost entirely in the company’s favour, ordering Cell C to suspend its newest advertising campaign. The authority’s full and unedited, 5 000-word ruling is pasted below. — Staff reporter, TechCentral
- See also: Vodacom vs Cell C: the gloves are off, Vodacom Cell C spat turns nasty and Vodacom sees red over Cell C taunts
In the matter between: VODACOM (PTY) LTD Complainant and CELL C (PTY) LTD Respondent
The advertising agency DRAFTFCB, on behalf of Vodacom, submitted a competitor complaint against a television commercial, two radio commercials and a print advertisement for Cell C.
The television commercial shows comedian Trevor Noah standing next to a blue car that has been partially spray-painted red. He says: “Recently, a 17 year old cell network changed their colours. Nice.” He then walks over to a black car and says: “But what’s actually under the hood? The engine that drives Cell C is its leading and completely new HSPA+ 900MHz network, voted best in the country.” During this statement, the claim “HSPA+900 VOTED BEST MOBILE BROADBAND” appears on-screen. He ends off by saying: “‘Cause it takes more than a lick of paint to be SA’s number one network, don’t you think?” He then looks at both cars and points to the black car.
Both radio commercials also feature Trevor Noah. In the first commercial, he says: “Recently, you may have noticed that a major cell network have changed their colour. Interesting. Now, Cell C’s leading and completely new HSPA+ 900 network is deployed on the smarter 900MHz frequency. It covers three to five times more ground, is better indoors with a 10 to 20 decibel gain, and yields the fastest mobile internet in South Africa. It’s also been voted the best mobile broadband service for 2010 by Mybroadband.co.za. So, you can pretty much guess which colour our competitor has turned. Cell C – the power is in your hands.”
In the second radio commercial, he says: “Recently, it seems a 17 year old cell network have resurrected some golden oldies to celebrate the colour red. How fun. Now, Cell C are more future-forward in their thinking. For example, they’re the first network in the world to deploy the fastest mobile internet in the country in less than three months with their leading and completely new HSPA+ 900 network, deployed on the smarter 900MHz frequency. Because, it takes more than nostalgia to be SA’s number one cellular network, don’t you think? Cell C – the power is in your hands.”
The print advertisement is headed “WHO’S THE LEADER NOW?” and states:
“It seems a major cell network may have stopped calling themselves leading. Perhaps they learnt about Cell C’s leading and completely new HSPA+900 network, which:
• covers a 3 to 5 times larger area per tower
• is better indoors with a 10 to 20 dB gain
• is SA’s only entirely Release 7 HSPA+ network
• is SA’s only all-IP architecture HSPA+ network
• delivers the fastest mobile internet in SA*
So, who’s the No.1 cellular network in South Africa now? We think the answer is black and white. But you decide. After all, with Cell C, the power is always in your hands.”COMPLAINT
The complainant submitted, inter alia, that the question “what is actually under the hood”, the claim that “it takes more than a lick of paint to be SA’s number one network”, in the context of the television commercial as a whole, and with particular reference to the visual of an old fashioned vehicle which is in the process of being re-sprayed, is discrediting Vodacom. The respondent’s intent is to dilute Vodacom’s brand campaign of changing its colours from blue to red. It is implied that Vodacom is an old-fashioned network, built on outdated technology that simply, through the use of colour, attempts to update and modernise its dated network. Cell C disparages Vodacom in communicating that whilst Vodacom is changing its colours, there is no substance under its “hood”.
The complainant further submitted that the claim in the television commercial that Cell C’s leading and completely new HSPA+ 900 network was voted best in the country, as well as the claim in the print and radio advertisements that Cell C is the number one cellular network, are misleading by ambiguity and dishonesty. All three cellular networks in South Africa currently offer a HSPA+ network. In the radio and print advertisements, Cell C reflects the criteria that render it the leading cellular network, e.g. “the new HSPA+ 900 network”, “the smarter 900 Megahertz frequency [which] covers 3-5 times more ground [and] is better indoors with a 10-20 decibel gain”, and “yields the fastest mobile internet in South Africa”. Vodacom’s network covers 90% of the South African geography, whereas Cell C’s network covers 40% by the same metrics. Cell C was not awarded the best network provider award in the recent MyBroadband survey, but received the Best Mobile Service Award, based on its launch pricing. Vodacom was awarded the Overall Broadband Provider Award. The reasonable consumer would, from the advertising in question, interpret Cell C to be the best mobile network. In a recent study, it was established that Vodacom still offers the best data network in South Africa. Accordingly, Cell C is requested to independently verify that it is the number one cellular network in terms of efficacy. Furthermore, the Cell C advertising is misleading in implying technological advantages over the Vodacom network. Cell C’s message abuses the consumer’s lack of technical understanding of data networks and the finer detail of the MyBroadband survey, which is dishonest.
In that the claims in the advertising are based on the MyBroadband survey, which survey constitutes a publication survey, it is submitted that the advertising does not clearly state the source of the research.
Cell C implies that, since it offers a leading and new HSPA+ 900MHz network, its network is superior to the “leading” network, i.e. Vodacom’s. This is a statement of fact, and as such it is not sufficient to base such claim on an outdated publication survey. In the MyBroadband survey, the findings were disclaimed. In a recent independent study, it was established that Vodacom still offers the best data network in South Africa. Cell C is requested to submit independent verification in support of its claim that it is the number one data network in South Africa.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
The complainant identified the following clauses of the Code as relevant:
• Section II, Clause 2 – Honesty
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
• Section II, Clause 6 – Disparagement
• Section II, Clause 7 – Comparative advertising
RESPONSE
Clear Copy, on behalf of Cell C, denied that the television commercial communicates that Vodacom is old-fashioned and out-dated or that there is no substance under Vodacom’s hood. The respondent did not deny that it is having a light hearted dig at Vodacom’s re-branding campaign, but argued that the primary message of the advertisement is to communicate Cell C’s benefits to the consumer. It argued that it is permissible in terms of the Code to have a “dig” at competitors as a secondary communication in an advertisement.
The blue car in the commercial is a Nissan Skyline GT-R from 1994, the year that Vodacom was launched. It was carefully chosen as it was a fast, well-received and popular car at the time. The choice of car is therefore not in the least disparaging and is in recognition of the excellent brand that Vodacom launched in 1994. The car is shown as being painted to change from blue to red. It is factually correct that Vodacom is rebranding to be “red”.
The questions “What is actually under the hood?” and “it takes more than a lick of paint to be SA’s number one network, don’t you think?” are legitimate questions. There is in fact nothing disparaging in the commercial itself.
The respondent submitted that while it is correct that “all cellular networks in South Africa offer a HSPA+ network”, there are HSPA+ networks that can be deployed on different frequency bands, which are distinguishable from each other. HSPA+ networks operating in the 900MHz frequency band have significant benefits compared to HSPA+ networks operating in the 2100MHz frequency band. Cell C has the most HSPA+ 900MHz base transceiver sites (BTS) making it the largest HSPA+ 900MHz network in South Africa. This is because each network operator is allocated a limited amount of frequency. MTN and Vodacom currently use most, if not all, of their 900MHz frequency to carry GSM traffic. GSM, which mainly carries voice traffic, is an older technology than HSPA+, which mainly carries data traffic. GSM 900 and HSPA+ 900 cannot co-exist in the same geographical area while sharing the same 900MHz frequencies. As a result MTN and Vodacom are using the 2100MHz frequency band for their HSPA+ traffic and therefore their networks can be categorised as HSPA+ 2100MHz networks.
The television commercial sets up the context on which the respondent arguably claims to be the leading or number one HSPA+ 900 MHz network – that it has a leading and completely new HSPA+ 900 MHz network because it has the most HSPA+ 900MHz BTS’ on air. The respondent noted that the HSPA+ 900MHz network is completely new because it has made it commercially available since August 2010 and uses only new network equipment, making it completely new.
In addition, Cell C was awarded the best mobile broadband service in the country by MyBroadband.co.za.
In relation to the “fastest” claim, the respondent submitted that the ruling of Cell C “Speed” / MTN (9 December 2010) found that Cell C’s claim to be the fastest is substantiated. There is nothing before the ASA to justify a reversal of this ruling. The respondent also submitted more recent substantiation to show that it delivers the fastest mobile internet in South Africa. It attached a screen shot from Netindex.com by Ookla. Ookla is the global leader in broadband speed testing and web-based network diagnostic applications.
The respondent argued that any one of the leadership aspects referred to above is enough of a basis for a claim such as “leader”, “leading” and “number one”.
The respondent submitted that the intention of the television commercial was that the words “voted best in the country” would be clearly qualified by the onscreen reference to the MyBroadband award. It agreed that in the final execution this may not have been clearly communicated. It therefore undertook to immediately change the phrase to “awarded best mobile broadband service”, with an onscreen reference to MyBroadband.co.za.
The respondent denied that it claims to be the number one cellular network in terms of efficacy, that it is the number one data network in South Africa and that it is the best mobile network. Accordingly, it should not have to substantiate these claims.
The complaint makes the broad allegation that the advertising does not clearly state the source of the MyBroadband survey. The respondent argued that it does not make reference to the Mybroadband survey. It refers to the award that it received from Mybroadband.co.za.
The respondent submitted two letters, together with supporting documentation, from Mr Andrew Johnson of Tubitayeho Telecomms Consulting in support of its claims.
The respondent argued that the allegation that the advertising is misleading because it implies technological advantages over Vodacom is unclear. In addition, the basis for the allegation that Cell C abuses the consumer’s lack of technical understanding of data networks and the finer details of the MyBroadband survey is unclear. It is also unclear where the “statement of fact” is made that Cell C is superior to Vodacom.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
At the outset the Directorate notes that there was a deviation from procedure in this matter. Under ordinary circumstances, the respondent would be afforded three working days to respond to the complaint. The complainant, however, pointed out that the respondent has been found to make inaccurate claims in many of the previous matters ruled against in recent months. In addition, it pointed out that the campaign at issue is a clear and deliberate attempt to stifle the complainant’s new rebranding campaign, and is likely to be repeated in the weeks to come. This, coupled with the previous rulings, shows the respondent’s tendency to make use of opportunistic campaigns to gain maximum (undeserved) benefit knowing that such claims and actions contravene the Code.
In terms of Clause 8.2.2.4 of the Procedural Guide, the Directorate is entitled to, at its discretion, lessen the deadline for a response, having regard for, inter alia, the urgency of the complaint, which is not in doubt in this matter. The Directorate also noted that the respondent’s campaign received wide-spread coverage, as it was launched on television, radio, and print, with multiple executions, aimed at maximising the impact. The Directorate also had reason to believe that the respondent’s campaign would receive a large amount of repetition in the near future.
Given this, and given the discretion afforded to the Directorate in terms of Clauses 8.2.2.4 as read with 8.14 of the Procedural Guide, the Directorate only afforded the respondent two working days to submit a response. It was felt that this would be a fair and reasonable time period under the circumstances.
The Directorate also notes that the complaint is vague in some respects, where relevant this will be elaborated on below. It appears that the complainant was in a hurry to draft its complaint and lodge it with the ASA urgently, as the complaint was lodged less than 24 hours after the respondent’s campaign was launched. The complainant also asked that this matter be treated and considered urgently. This might explain the vague aspects of the complaint. However, the Code (and the principles of natural justice) requires of a complainant that it must clearly state its grounds of complaint. The vagueness of the complaint has delayed the Directorate’s ruling because it made it more difficult for the Directorate to consider and rule on.
It is noted that the Directorate will only consider the complaint insofar as the grounds of complaint are clear and in respect of claims that are actually made by the respondent.
The print advertisement
In Incredible Connection / Matrix Warehouse / 8613 (5 October 2007), the Directorate considered the claim “the biggest … I.T. retailer in South Africa”. It held, referring to the quoted passage from the Matrix Warehouse / Incredible Connection / 869 (8 April 2005) ruling, “Similarly, the claim in the present matter will be understood to mean that on some objective criteria the respondent is the biggest IT retailer in South Africa. It does not have to be all possible objective criteria, but the overall impression should be verified by objective substantiating documents. The context of the claim will determine how the hypothetical reasonable person will interpret it, and that, in turn, will determine the criteria on which the claim should be based and substantiated”.
The hypothetical reasonable person will likely understand the print advertisement, which is headed “WHO’S THE LEADER NOW?” to make the implied claim that Cell C is now the “No.1 cellular network in South Africa”. The advertisement motivates this claim by referring to Cell C’s “leading and completely new HSPA+900 network” and stating its benefits.
The complainant objected to this on the basis that Vodacom’s network covers a larger geographical area, and that Cell C is not better indoors and does not deliver the fastest mobile internet in South Africa.
Clause 4.1.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. In addition, Clause 4.1.4 of Section II states that such documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate.
In essence, therefore, the respondent must prove the following claims in order to be able to make the claim “No.1 cellular network in South Africa” in this context:
• “covers a 3 to 5 times larger area per tower”;
• “is better indoors with a 10 to 20 dB gain”;
• “delivers the fastest mobile internet in SA”.In support of its claims, the respondent submitted two letters, dated 11 April and 12 April 2011 respectively, together with supporting documentation (some of which is confidential), from Mr Andrew Johnson of Tubitayeho Telecomms Consulting.
Mr Johnson’s CV indicates that he is an engineer and that he has been involved in the telecommunications industry since 1994 in different entities with roles varying from engineer to Chief Technology Officer (CTO), CEO of a GSM operation, and a Group role in charge of Telecomms Network Technology at MTNGroup. He currently consults to the industry at various levels with a focus on mobile, fibre and broadband technology strategy. Mr Johnson’s letter confirms that he is not employed by Cell C and that he has no affiliation with Cell C.
It therefore appears that Mr Johnson is an independent and credible expert in the field to which the claims relate, and is therefore accepted as such for the purposes of Clause 4.1.4 of Section II.
The letter dated 12 April 2011 confirms, inter alia, that Cell C is the only operator to exploit the 900MHz band for UMTS HSPA+ commercial service “based on the finding that neither MTN nor Vodacom appear to have re-farmed 900 MHz spectrum in any of the 15 major areas across South Africa…”
It therefore appears that the complainant is not using the 900MHz frequency for its HSPA+ network as the respondent is doing. The complainant did not dispute this.
Mr Johnson’s letter of 11 April 2011 states, inter alia:
“It is difficult to state with precision as to how much more area the 900 MHz signal will cover than the 2100 MHz signal as this is dependent on environment, height above ground level and other factors, n Ovum report to the GMSA indicated a 2X-4X gain in coverage or put differently, a 60% reduction in sites to achieve the same coverage (UMTS Forum)… The Cell C claim of 3-5X is therefore reasonable.”
The Directorate firstly notes that the claim “covers a 3 to 5 times larger area per tower” is not qualified in any way. Secondly, the Directorate is not an expert in technical matters such as these, and is therefore not in a position to draw conclusions from technical data. It therefore relies on confirmation of claims by independent and credible experts. And because the Directorate is not an expert, it needs the verification of claims to be unequivocal.
Mr Johnson’s opinion appears to be qualified, and his letter does not unequivocally confirm that Cell C’s HSPA+900 network “covers a 3 to 5 times larger area per tower”. In fact, it is not clear why the claim of 3 to 5 times larger area coverage is “reasonable” if the report he refers to only indicated a “2X-4X gain in coverage”.
Accordingly, the claim “covers a 3 to 5 times larger area per tower” is not substantiated in terms of Clause 4.1 of Section II.
Mr Johnson’s letter of 11 April 2011 further states:
“…propagation modelling and measurement is not an exact science. The COST 231 model and the observations in the Qualcomm document indicate that although an overall difference in path loss of the order of 12 dB is to be expected, the difference in the in-building path loss component between 900 MHz and 2100 MHz is approximately 4-10dB, depending on the type of building and that this difference decreases as the height above ground level i.e. floor of the building increases… field trials have shown a 10-20 dB improvement in Finland – so it would be reasonable to say that similar improvements could be expected in the South African urban environment using HSPA+ in 900 MHz band.”
As with the previous claim, the claim “is better indoors with a 10 to 20 dB gain” is not qualified in the advertisement. However, it again appears that Mr Johnson’s opinion is qualified. He does not unequivocally verify that Cell C’s HSPA+900 network “is better indoors with a 10 to 20 dB gain”.
Accordingly, this claim is not substantiated in terms of Clause 4.1 of Section II.
As for the claim that Cell C’s HSPA+900 network “delivers the fastest mobile internet in SA”, the respondent referred to a previous ruling (Cell C ‘Speed’ – MTN – 16737 (9 December 2010)) and argued that there is nothing before the ASA to justify a reversal of this ruling.
The Directorate notes, however, that in the Cell C “Speed” / MTN matter, the respondent’s claim was qualified. The Directorate held, inter alia:
“Any reasonable person reading this advertisement would be in no doubt that the respondent based its claim of having the fastest network on the results of the 2010 Broadband Survey… The respondent’s claim is based on a survey done by an independent website, and the advertisement states this… Consumers have the option of deciding whether the 2010 Broadband Survey is reliable and significant or not.”
In the present matter, there is no reference in the advertisement to the relevant 2010 MyBroadband survey on which the claim in the Cell C “Speed” / MTN matter was based. The claim in the present matter appears in a different context, and the previous matter is therefore not binding on this matter.
The respondent submitted a print out from the Netindex.com website to show that on 5 April 2011, Cell C’s internet speed was higher than Vodacom’s and MTN’s. This is not sufficient substantiation for as broad and unqualified a claim as “delivers the fastest mobile internet in SA”. For example, the Directorate accessed the Netindex.com website on 13 and 14 April 2011, and Vodacom’s recorded internet speed was higher than Cell C’s on both dates.
In any event, the onus was on the respondent to provide verification from an independent and credible expert, that interprets the relevant information on, for example, Netindex, and confirm that, based on this information, the respondent is entitled to make such a claim.
Accordingly, the claim is not substantiated in terms of Clause 4.1 of Section II.
Given that the respondent has not adequately substantiated the above claims, it follows that the claim “leading” and the implied claim that Cell C is now the “No.1 cellular network in South Africa” are unsubstantiated.
The relevant claims in the respondent’s print advertisement are therefore currently unsubstantiated and in breach of Clause 4.1 of Section II.
Given the above:
• The claims must be withdrawn;
• The process to withdraw the claims must be actioned with immediate effect on receipt of this ruling;
• The withdrawal of the claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
• The claims may not be used again in their current format until new substantiation has been submitted, evaluated and a new ruling is made in terms of Clause 4.1.7 of Section II of the Code.
This part of the complaint is upheld.
The radio commercials
With regard to the first radio commercial, the complainant did not take issue with the claim, “voted the best mobile broadband service for 2010 by Mybroadband.co.za”. It took issue with the claims “It covers three to five times more ground, is better indoors with a 10 to 20 decibel gain, and yields the fastest mobile internet in South Africa.”
As noted above, Mr Johnson’s letter of 11 April 2011 does not unequivocally verify the claims that Cell C’s HSPA+900 network “covers three to five times more ground” and “is better indoors with a 10 to 20 decibel gain”. In addition, the respondent has not submitted sufficient proof to substantiate the broad and unqualified claim that the network “yields the fastest mobile internet in South Africa.”
The claims are therefore currently unsubstantiated and in breach of Clause 4.1 of Section II.
Given the above:
• The claims must be withdrawn;
• The process to withdraw the claims must be actioned with immediate effect on receipt of this ruling;
• The withdrawal of the claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
• The claims may not be used again in their current format until new substantiation has been submitted, evaluated and a new ruling is made in terms of Clause 4.1.7 of Section II of the Code.
This part of the complaint is upheld.
As for the second radio commercial, the complainant does not seem to take issue with the claims as they appear in that commercial. The Directorate notes that the second radio commercial contains certain claims and statements that do not appear in the other advertisements, which could arguably affect the meaning of statements such as “leading” and “SA’s number one cellular network”.
The Directorate will therefore not consider the second radio commercial at this time.
The respondent’s attention is, however, drawn to Clause 15.5 of the Procedural Guide insofar as the claims found against are concerned.
The television commercial
The television commercial implies that Cell C is SA’s number one network because of its leading and completely new HSPA+ 900MHz network, which was voted best in the country.
The complainant submitted that the respondent was not awarded the best network provider award in the recent MyBroadband survey, but received the Best Mobile Service Award.
The respondent undertook to immediately change the phrase “voted best in the country” to “awarded best mobile broadband service”, with an onscreen reference to MyBroadband.co.za.
It is not in dispute that Cell C was awarded the Mobile Broadband Service of the Year award by MyBroadband.co.za in 2010.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, that undertaking is accepted without considering the merits of the matter.
The respondent’s undertaking appears to address the complainant’s concerns and there is therefore no need to consider the merits of this aspect of the complaint at this time.
The undertaking is accepted on condition that the claim in its current format is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.
The complainant also argued, in essence, that the television commercial disparages Vodacom and its brand campaign of changing its colour from blue to red. The respondent disputed, in essence, that there is anything disparaging in the commercial and submitted that the Code allows it to have a “dig” at competitors as a secondary communication in an advertisement.
Clause 6 of Section II states, inter alia, that advertisements should not attack, discredit or disparage other products, services, advertisers or advertisements directly or indirectly. It also makes the point that comparisons highlighting a weakness in an industry or product will not necessarily be regarded as disparaging when the information is factual and in the public interest.
Clause 7.1 of Section II states, inter alia, “Advertisements in which factual comparisons are made between products and/or services are permitted provided that…
7.1.6 no disparagement takes place as governed by Section II Clause 6”.
The complainant referred to the blue car in the commercial as “old fashioned”. It did not motivate this submission. The respondent has correctly indicated that the car is a Nissan Skyline GT-R, a car which, according to Wikipedia, is classified as a sports car and has become an iconic sports car through pop culture such as cinema and video games, e.g. The Fast and the Furious movie series and Gran Turismo games.
In light of this, the complainant’s unmotivated submission that the blue car is “old fashioned” cannot stand.
The Directorate is therefore not convinced that the commercial disparages Vodacom as an entity as such.
Having said that, the commercial does comment on the complainant’s current re-branding campaign, i.e. its campaign to change its colour from blue to red.
The commercial opens with an indirect reference to Vodacom, and states that it recently changed its colours. It then asks what is actually “under the hood”, and states that Cell C is driven by a new and leading network. The commercial ends with the indirect claim that it takes more than a lick of paint to be South Africa’s number one network.
What Cell C is in effect doing with this commercial is to discredit Vodacom’s current advertising campaign relating to its change from blue to red. It compares Cell C’s change to a new and leading network with Vodacom’s change to a new colour, and discredits the latter by questioning the value of the colour change with the statements “But what is actually under the hood?” and “it takes more than a lick of paint to be SA’s number one network”. Although these statements are essentially posed as questions, the implied claim is that the change is not really of any value as it is only cosmetic.
With regard to the respondent’s argument that it is entitled to have a “dig” at competitors as a secondary communication in an advertisement, the respondent’s attention is drawn to the Final Appeal Committee (FAC) ruling in Chicken Licken / KFC / 11339 (2 March 2009). In upholding the Directorate’s finding that Chicken Licken’s television commercial disparaged KFC’s icons and brand, the Appeal Committee held, inter alia:
“…the different interests of the parties must be balanced and weighed up… For Chicken Licken there is freedom to express its marketing campaigns, while KFC is entitled to expect that its competitor in the same field, will carry out its campaigns in such a manner that will not result in its products or advertisements being discredited or disparaged. Public policy is in line with this requirement. In weighing these two interests up, the right of Chicken Licken to freedom of expression must give way to its obligation not to advertise in a manner which would discredit or be disparaging of its major competitor’s product or advertisements. Nor should they promote their product in a manner which discredits or disparages their competitors’ product or advertisements.”
Accordingly, the Cell C television commercial disparages Vodacom’s current advertising campaign, and is therefore in breach of Clause 6 and Clause 7.1.6 of Section II.
In light of the above finding, the respondent is required to:
• Withdraw the television commercial;
• The process to withdraw the commercial must be actioned with immediate effect on receipt of this ruling;
• The withdrawal of the commercial must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
• The commercial may not be used again in its current format in future.
The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.
This aspect of the complaint is upheld.
Sanctions
The complainant pointed out that there are currently six adverse rulings against the respondent in the last 12 months. Given this, and given the above findings, the ASA will consider whether the respondent’s behaviour indicates a pattern of deliberate and/or flagrant offence, which may warrant imposing sanctions on the respondent, and if so, which sanctions should be imposed. First, however, the parties will be given an opportunity to comment on the issue of sanctions. The complainant will first be given 10 days to comment, after which the respondent will be given 10 days to comment. It is specifically noted that the Directorate may consider whether to impose a sanction in terms of Clause 14.3 of the Procedural Guide, and the respondent should therefore also comment on this specific sanction (as per Clause 14.3.4 of the Procedural Guide).
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