Regulator sanctions influencers over Lotto adverts – Comedians do not get the last laugh after failing to disclose that Twitter posts were paid advertising

The Advertising and Regulatory Board (ARB) recently handed down a decision holding that the videos posted by comedians Skhumba Hlophe and Celeste Ntuli had breached the code on South African advertising.

Hlophe and Ntuli uploaded videos on their Twitter accounts, promoting  South Africa’s national lottery, Ithuba Holdings RF (Pty) Ltd (Ithuba). The videos were part of an Ithuba campaign that sought to illustrate how the money it makes from ticket sales gets distributed. These videos trended on the number one position on Twitter between 11 and 13 August 2022. Subsequent to this, a consumer filed an ARB complaint against Ithuba on the basis that, inter alia, Hlophe and Ntuli had not included the required hashtag to indicate that the videos were paid advertising.

In considering the complaint, the ARB noted that clause 3.1 of Appendix K of the ARB Code states that advertisers are required to “disclose if content is part of a Social Media Advertising campaign as opposed to purely Organic Social Media.” Further, clause 3.3 of Appendix K provides that paid social media advertising must be clearly identifiable as such. Clause 3.3 then proceeds to list the recognised social media identifiers which include “#AD”, “#Advertisement” and “#Sponsored”.

Hlophe and Ntuli had omitted these identifiers and the ARB therefore ruled that Ithuba had not provided consumers with the necessary indicators to identify that the videos were sponsored or paid-for content. It held that consumers were likely to be confused into believing that their videos were organic social media. These videos were found to be contrary to clause 3.3 of the ARB Code and as a result, they were sanctioned from being accepted for publication.

In further considering the complaint, the ARB referred to the video uploaded onto Twitter by a fellow comedian, Schalk Bezuidenhout, in relation to the same Ithuba campaign. Bezuidenhout had included the hashtag “#ad” and made reference to having made a “Lekker PSA” (public service announcement), in his caption. His video was held to be compliant with clause 3.

Although it had made its ruling, the ARB noted that its memorandum of incorporation (MOI) states that the company has no jurisdiction over any person or entity who is not a member and may not, in the absence of submission to its jurisdiction, require non-members to participate in its processes. Its MOI further states that it may still consider complaints filed against non-members for the guidance of its members, however, such decisions will not be binding on non-members.

Ithuba is not a member of the ARB. Further, Ithuba had not responded to the ARB complaint and had thus, not submitted to the ARB’s jurisdiction. As such, its ruling is not binding on Ithuba but is binding on ARB members and on broadcasters in terms of the Electronic Communications Act.

The question of whether or not an ARB decision may be enforced against a non-member is currently before the Constitutional Court for determination. Consumers and businesses are encouraged to familiarise themselves with the ARB’s Code and to ensure compliance as far as possible.

Rebone Setati

Associate | Attorney

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