Your (un)fair advantage

Satire vs The ASA Code
1/12/2011

Nando’s strikes again with a controversial TV ad campaign, leaving the South African community in stitches and Zimbabweans with a sour taste.

The new ad titled, The Last Dictator Standing, shows Mugabe alone at a dinner table reminiscing about the good times he had with his co-dictators who have passed on. It has only been a week since Nando’s launched the commercial on South African TV, but the ad has gone viral with over 258 000 views and Robert Mugabe’s youth supporters have already called upon all Zimbabweans to boycott Nando’s restaurants in their country as the ad undermines the President’s authority, which is a criminal offence in Zimbabwe. However, Mugabe and his officials have not laid a complaint regarding the ad.

According to Adams & Adams’ Trademark Attorney and Advertising Law expert, Kelly Thompson, the commercial could possibly run into problems in South Africa too if a complaint were to be lodged. The ASA code says that advertisers should not portray living persons without their permission. However, there are a few exceptions to the rule, like occasions where the ASA does not believe the portrayal is inconsistent with the individual’s right to reasonable degree of privacy and does not believe that there has been an unjustifiable commercial exploitation of the individual’s fame or reputation.

Nando’s has been in hot water before with the ASA over a reference to the then CEO of South African Airways in an ad after substantial media coverage alleged that his wife had obtained a tender through her relationship to him. There, Nando’s argued that public figures have a lesser right to privacy. The ASA agreed because the facts surrounding the allegations had been widely broadcast and dismissed the complaint. Likewise, with the present ad, it is arguable that Robert Mugabe’s mis-deeds and the fact that he is a dictator have been so widely publicised that his right to privacy has been substantially diminished and this ad is not inconsistent with that right.
Kelly Thompson
Partner
kelly@adamsadams.co.za
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Partner
Trade Mark Attorney
Tel: +27 (0) 12 432 6298
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The firm practises directly in several Southern African countries and through long-established associates in others.