META-morphosis: exciting developments in respect of the enforcement of ARB complaints

On Monday afternoon, the Advertising Regulatory Board (“ARB”) set the industry abuzz after it announced that Meta, the technology conglomerate which owns and operates a hive of social media platforms such as Facebook and Instagram, has created an access point which will enable it to share its decisions – which affect advertising on Meta’s platforms – in a more streamlined manner. The effect of this announcement is significant, as there is now a mechanism for the ARB to share its rulings with Meta directly, which will then be evaluated and cause adverts to be removed, where appropriate.

The ARB is, of course, a self-regulatory, membership-based entity which makes decisions for the guidance of its members and broadcasters. The relationship between the ARB and its members is contractual in nature, and the ARB’s Code of Advertising Practice provides that its members must not prepare or accept any advertising that conflicts with its Code, and must withdraw any advertising that is subsequently deemed to be unacceptable. This is published by the ARB in the form of an “ad alert”, which signals to its members when an advertisement is contrary to the Code.

The fly in the ointment, however, remains the enforcement of ARB decisions against non-members, with the position having been recently crystalised by the Constitutional Court in the matter of Bliss Brands (Pty) Limited v Advertising Regulatory Board NPC and Others in 2023. In this landmark judgment, the Court confirmed that while the ARB has no jurisdiction over non-members, it may issue rulings which negatively impact on the rights of non-members. An ARB ruling against a non-member can, therefore, still sting, considering that its bound members control the print, digital, and broadcast media in South Africa.

Practically, when the ARB receives a complaint against a non-member, it will always give that company an opportunity to respond. If the company fails to respond or indicates that it does not regard the ARB as binding, a decision is then made to guide the ARB’s members and broadcasters. While Meta is not a member of the ARB, the opening of a channel of communication between it and the ARB will certainly improve the speed at which the ARB’s decisions can be evaluated and enforced on social media platforms. This change is hoped to take the enforcement of ARB rulings to new heights.