DA appeals ASA decision not to investigate Secrecy Bill propaganda campaign

I have written to the Advertising Standards Authority of South Africa (ASA) to request that they reconsider their decision not to investigate a number of advertisements purchased by the Department of State Security which factually misleads the public on the Protection of State Information Bill.

ASA declined my request to investigate the Secrecy Bill advertisements, relying on Clause 9.4 of Section 1 of the Advertising Codes of Practice, which states that:

To the extent that any advertisement

- Expresses an opinion on a matter which is the subject of controversy; and

- That controversy involves issues within the areas, broadly defined, of public policy and practice, then that opinion shall not be subject to the provisions of the Code relating to misleading claims...

I have argued in my appeal that this decision is incorrect. The clause provides that an opinion must be expressed on this matter of controversy. This was not the case. The Department of State Security made a number of assertions which factually mislead the public on the nature, purpose and consequences of this proposed legislation.

As Gail Schimmel, an expert in Advertising Law points out in her article "Is ASA following its rule in refusing to investigate POIB?" the adverts do not simply point out that the bill is a good idea, but go further in making a number of misleading assertions as to what the bill will achieve, including that it will prevent ID and Birth Certificate fraud.

In doing so, the advertisements exceed an expression of an opinion. They therefore cannot be precluded from the ambit of ASA through Clause 9.4 of the Code.

The DA maintains that the advertising campaign makes a number of claims about the bill which breaches the Advertising Code. These include:

Section 2.2 Honesty

This section of the Code states: "Advertisements should not be so framed as to abuse the trust of the consumer or exploit his lack of experience or knowledge or his credulity."

However, this is exactly the tactic employed by the Department of State Security, which has chosen to base its adverts on only very narrow sections of the Bill while downplaying significant concerns and aspects thereof and appealing to emotion, unduly exploits citizens' lack of detailed knowledge about the Bill.

Section 3.1: Fear

This section of the Code states: "Advertisements should not without justifiable reason play on fear."

Apart from unjustifiably fuelling and exploiting legitimate concerns over identity theft, the radio advertisement also echoes Minister Cwele's unsubstantiated claims about "spies out there who want to steal our information to develop their own countries at our expense".

Section 4.1 and 4.2: Truthful presentation

These sections of the code state that advertisements should not contain any statement which is likely to mislead the consumer, directly or by implication, through omission, ambiguity, inaccuracy or exaggerated claims.

The television adverts contained in the Department of State Security's campaign not only exaggerate the implications and scope of the bill in dealing with the information of citizens and companies, but also fail to mention the significant focus of the bill on the classification of state information and potential it holds for hiding embarrassing information and preventing the media from both uncovering and reporting on corruption.

The security of our country and its citizens is indeed a priority. However, this should not be used to manipulate citizens into supporting a piece of legislation which, in its current form, is far from perfect. Instead of protecting our hard-won freedom as the Department's advertising claims, the Protection of State Information Bill has the potential to undermine the Constitution and the basic freedoms guaranteed by our Bill of Rights.

I trust that ASA will consider my request to reconsider their decision in good faith. It must be made clear to the Department of State Security that they cannot manufacture support for the bill through the use of misleading claims, which are prohibited in terms of our Advertising Code.

Statement issued by Lindiwe Mazibuko MP, DA Parliamentary Leader, April 24 2012

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