Advertising in a COVID World Quarter 1 2021

By GAIL SCHIMMEL, Published in COVID-19 Advertising Law

I think that it is safe to say that there is not an area of our lives that COVID has not affected – and the world of advertising regulation is no different.

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At the beginning of the pandemic, government approached the Advertising Regulatory Board (ARB) and asked us if we didn't need to urgently add something to our Code. The truth of the matter is that the Code of Advertising practice, based on years of local and international experience, is really quite a remarkable document that caters for situations that it didn't even know could happen. We didn't have to change the Code when social media was invented, and we didn't have to change the Code to deal with COVID!

We tend to receive two types of COVID-related complaints. The first is advertising that makes misleading claims about COVID and/or its prevention and cure. Listen, ads telling lies is a problem as old as advertising itself, and our clauses on misleading claims and substantiation are well equipped to deal with these issues. Much more interesting is the second type of complaint, which is around the behaviour of the characters in a commercial around COVID protocols and regulations.

There are two main clauses of the Code that we would typically rely on if we received a valid complaint in this area:

3.3 Legality

Advertisements must not contain anything which might lead or lend support to criminal or illegal activities, nor should they appear to condone such activities.

And

13. Safety

Advertisements should not without reason, justifiable on educational or social grounds, contain any visual presentation or any description of dangerous practices or of situations which show a disregard for safety. Special care should be taken in advertisements directed towards or depicting children or young people.

Towards the end of last year, we issued a decision that caused a bit of a stir in the advertising community – possibly because they just read the headlines and not the decision. The matter was Fly Safair – Lee Barnard (23 October 2020), and we described the ad in question as follows:

During the commercial, the voice-over states: "For too long we've put special moments on hold, but now it's time to go say hello to the family you haven't seen in ages. To the friends you've missed, and to your favourite holiday destinations. It's time to fly again South Africa. Let's spread our wings. FlySafair, for the love of flying". During this monologue, the scenes change from passengers (wearing face masks) boarding a flight, and being directed to their seats by flight attendants (wearing masks and gloves), to a group of people embracing outside (no gloves or masks visible), to another group of people embracing indoors (no gloves or masks visible), and finally to a group of friends enjoying cocktails beside a pool (no gloves or masks visible).

The complaint was around the lack of masks and social distancing.

The Directorate referred to the relevant regulations at the time and then said:

The opening scene of the commercial shows people boarding a plane, and it is clear that all passengers and crew are wearing masks. This sets the tone, and reinforces the notion that masks are to be worn in public spaces and when making use of public transport. The viewer is aware that this is not an "old" commercial – this is a commercial set in a time of Covid and the depicted behaviour is in line with Covid regulations. The failure to show masks in the subsequent scenes therefore may imply to some viewers that once you are on holiday, the rules no longer apply, and you may remove your masks and ignore social distancing protocols, going so far as to hug your family and friends. Finally, the Directorate gave some thought to whether alternative executions were available to the Advertiser, and found that they were. There is no reason that the same message could not have been portrayed with the use of the early footage of the travel, and appropriate landscape shots or voice-over. The commercial is therefore in contravention of Clause 3.3 of Section II of the Code. Given that the purpose of the regulations is to ensure the safety of citizens from the Covid 19 virus, the commercial is also in breach of Clause 13 of Section II of the Code.

Cue panic from industry.

We then issued the following notice, to assist advertisers and advertising law practitioners:

"ARB Clarification on the implication of the FlySafair decision
Following a number of queries, the ARB wishes to unpack and clarify the implications of the recent Fly Safair decision around masks.

First and foremost – this does not create a blanket rule that all actors in all ads must wear masks.
It also does not have any implications around the rules of behaviour on set – this is beyond the ARB's jurisdiction.

The ad in question, however, had a very specific issue:

  • The ad opens with people wearing masks. The viewer is immediately cued that this is the present, and depicts a world where the Covid regulations apply. What they are seeing is neither pre-Covid, nor a fantasy. It is now, and reflects Covid Regulations;
  • Then the people arrive at their holiday destination and are NOT wearing masks. This creates the impression that in this Covid world, once you are on holiday, there are different rules. You can hug and not wear masks – because the people in the ad were keeping the rules before, the viewer may believe that they are either still keeping the rules, or that it is generally accepted that the rules can be relaxed once you are on holiday.
  • The advertiser tried to fix this with a disclaimer, but the disclaimer was very small and very brief.

What could you do in a similar situation:

  • A big, bold disclaimer that nobody can miss;
  • Clear clues that the ad takes place in a pre-Covid world, or a fantasy. "Christmas 2019" it might say on the screen, for example."

Schimmel is the CEO of the Advertising Regulatory Board. She remained appropriately socially distanced while writing this article.