As social media advertising continues to evolve beyond a mere tool for promoting goods and services and increasingly serves as a form of public engagement, it remains subject to core legal principles. Advertising must still be honest, clear, and compliant with applicable laws. This obligation is now more important than ever in an era of fast-moving digital content.
While the Consumer Protection Act 68 of 2008 (“CPA”) prohibits false, misleading, or deceptive representations by suppliers, it is not the sole safeguard available to consumers. The Code of Advertising Practice (“the Code”), administered by the ARB, plays a complementary and significant role in maintaining ethical advertising standards.
The regulatory framework
Advertising plays a powerful role in shaping consumer behaviour. With that influence comes a corresponding duty to ensure that marketing messages are truthful and not misleading.
The ARB is an independent, industry-funded body established to ensure that advertising operates in the public interest. Although it only has direct jurisdiction over its members, its rulings are widely respected and have a substantial influence across the advertising industry.
The Code is binding on all ARB members and electronic broadcasters. It requires that no advertisement may be created or disseminated if it conflicts with its provisions. Advertisers, agencies, and media owners are further obliged to withdraw or amend any advertisement found to be non-compliant.
In terms of Section 1 of the Code, its primary purpose is to regulate commercial advertising, applying to all advertisements for the supply of goods, services, or facilities. It also extends to government advertising and that of non-commercial organisations and individuals. However, political, controversial, or advocacy advertising falls outside the ARB’s scope.
What constitutes misleading advertising?
When assessing compliance, the ARB considers the overall impression that an advertisement creates on the “average consumer.” This assessment is holistic and considers:
- visuals
- wording
- sound
- the platform or medium used
Importantly, the ARB evaluates not only literal accuracy but also whether the advertisement could mislead through implication or omission. The Code recognises that misleading advertising is not limited to outright false statements. An advertisement may be deemed misleading if it:
- uses vague, ambiguous, or exaggerated language that creates unrealistic expectations;
- relies on disclaimers or fine print that contradict the dominant message;
- includes scientific or technical claims without adequate substantiation; or
- exploits a consumer’s lack of knowledge or understanding
In addition, advertisements directed at children are assessed more strictly to ensure enhanced protection.
The role of the ARB
As a self-regulatory body, the ARB plays a central role in maintaining advertising standards. Its primary functions include:
- assessing whether advertisements comply with the Code; and
- directing the withdrawal or amendment of advertisements found to be misleading or non-compliant
Although the ARB does not have statutory enforcement powers equivalent to a court, its decisions carry significant weight within the advertising industry.
Sanctions and enforcement
The ARB does not impose financial penalties. Instead, it relies on the collective commitment of its members, who agree not to publish or distribute advertisements that breach the Code. In practice, this makes ARB rulings highly influential, particularly for major brands and media platforms.
Where an advertisement is found to be misleading, the ARB may:
- require the immediate withdrawal of the advertisement;
- instruct that the advertisement be amended; or
- issue an adverse ruling, which may have reputational consequences for the advertiser
In an era of increasingly sophisticated and fast-paced marketing, particularly on digital platforms, the importance of truthful and responsible advertising cannot be overstated.
The Checkers Sixty60 ruling serves as a timely reminder that while creativity and innovation in advertising are encouraged, they must not come at the expense of honesty and transparency. As the regulatory landscape continues to evolve, both statutory frameworks and industry self-regulation will remain essential in protecting consumers and maintaining trust in the marketplace. For businesses navigating these boundaries, compliance is not merely a legal obligation but a critical component of brand integrity and consumer confidence.
Disclaimer: This article is the personal opinion/view of the author(s) and does not necessarily present the views of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever, and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).
