Advertising Standards Authority of South Africa (ASA) makes finding against agency (15 July 2009)
Often enough printed advertisements seem to portray the promised land through tinted glasses, the reality fading against the conjured image. In this matter, a printed advertisement by a reputable estate agency promoted the sale of apartments in a sectional title complex. A disappointed purchaser approached the ASA and complained that there was no gym in the scheme, as was indicated in the printed advertisement.
The ASA found in the complainant’s favour holding that the reasonable person would, when reading the printed advertisements, assume that there was a gym. It was no defence to offer assurance that the gym would soon be available.
From a property law role-player’s point of view, it is worthwhile to take note of this finding since it relates directly to the marketing of property generally. Consideration must also be had to the impact that the Consumer Protection Act (when it comes into effect in 2010) will specifically have on advertisements such as the one under consideration since this Act has many wide ranging provisions aimed at preventing and penalising misleading advertisements.
The ASA’s finding can be accessed here.
Facts
In this matter a reputable estate agency marketed a new sectional title complex, promising in its printed advertisements an entry to an eclectic lifestyle for the buyer with “Shops, Coffee Bar, Deli, Pool, Gym, etc.” included in the scheme. Mrs X lodged a complaint with the ASA against the estate agency because the gym facilities were not available at the complex. The agency acknowledged this but indicated that it would soon be available.
Finding
- In terms of the Code of Advertising Practice (‘the Code’), “advertisements should not contain any statement or visual presentation which directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.”
- The advertisement in question is specific that there is a gym available at the complex. Despite the estate agency’s assurance that gym facilities will be available after a certain date, the commission found that a reasonable person would, on seeing the advertisement, believe that gym facilities are available at the advertised building. Since the facility was not (yet) available, the content of the advertisement was not true and constitutes a ‘misleading’ advertisement as defined in the Code.
- The ASA accordingly found in favour of Mrs X and ordered immediate withdrawal of the advertisement and prohibited its re-use in the current format.
Moral of the story: It is very important that estate agents (with their marketing agencies) and their legal representatives familiarise themselves with the provisions of the Consumer Protection Act 68, 2008 (‘the Act’). The Act deals extensively with the rights of consumers generally and affords them very wide protection. It contains certain fundamental consumer rights, one of which is the right to fair and responsible marketing. Under the latter right, any marketing such as was the subject matter in the current complaint would be unacceptable and render the agency open to penalties. (The Act will be implemented in increments: some of the provisions will come into effect on 29 April 2010, while the bulk of the provisions will come into effect on 24 October 2010.) |