The Jurisdiction of the Advertising Regulatory Board over Non-members: The Supreme Court of Appeal confirms its Herbex-order in the Bliss-matter

Abstract

This contribution seeks to answer the following question: To what extent does the Advertising Regulatory Board (ARB), as a public watchdog in the advertising industry, have the jurisdiction to consider advertising complaints filed against a person or entity which is not a member of the ARB?

In Advertising Regulatory Board NPC v Bliss Brands (Pty) Ltd 2022 JDR 0769 (SCA), the Supreme Court of Appeal confirmed its earlier order in Advertising Standards Authority v Herbex (Pty) Ltd 2017 6 SA 354 (SCA) that the ARB possesses the jurisdiction to consider an advertising complaint irrespective of whether or not the relevant advertiser is a member of the ARB. Although non-member advertisers may elect not to subject themselves to the jurisdiction of the ARB or comply with an ARB ruling, all ARB rulings are issued for the adherence by the ARB's members. In the instance of a non-member who exercises its constitutional right to dissociate from the ARB and its adjudication process, the ARB may nevertheless consider an advertising complaint if there is a potential contravention of the ARB's Code of Advertising Practice.

The SCA's ruling should be considered in the context of the important role that the ARB performs as a service to the general public. While the court a quo in the Bliss-matter attempted to derail this public function, the SCA has come to the aid of the general public in justifying the jurisdiction and public function of the ARB as a body which sets out and rules on ethically acceptable and responsible advertising for the benefit of consumers. Given the advantages of the ARB mechanism as it currently stands, it is submitted that the broader public interest may very well prevail should leave to appeal to the Constitutional Court be granted.