ENSafrica successfully represented Virgin Active in a South African Advertising Standards Authority (“ASA”) matter, regarding a Virgin Active TV advertisement that used the expression “get off your ass”. The case in question is S Jack & others v Virgin Active South Africa (Pty) Ltd, and the ruling was handed down on 26 February 2016.

The point of the advertisement was to persuade people to start working out at Virgin Active gyms. Under the banner “GET UP, GET ACTIVE”, the advertisement used the expression “get off your ass” on a number of occasions. Here are two examples:

1. “If you’re feeling kind of bummed that you’re not having all the fun, get off your ass.”

2. “If you think the world’s against ya cos your nice pants they don’t fit ya … get off your ass.”

A handful of people complained about the advertisement, claiming that it contained an expletive. The ASA ruling deals with two separate provisions of the ASA Code. The first of these is clause 14 of section II, which deals with advertising and children. This clause says, among other things, that an advertisement should not cause children mental, physical, emotional or moral harm, nor should it leave children with the impression that undesirable behaviour is acceptable.

The second provision, clause 1 of section II, deals with offensive advertising. It says that “no advertising may offend against good taste or decency or be offensive to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”

Virgin Active responded to the complaint with a number of arguments. It said that the advertisement is motivational, in that it exhorts people to exercise. It said that the expression “get off your ass” is colloquial, and isn’t out of line with society’s values. It argued that the expression is appropriate, given the light-hearted and fun tone of the advertisement and that there was no visual connection with any body part. It further said that it is generally adults who go to gyms, so the advertisement wasn’t aimed at children. It added that most children know the word “ass” (or “arse”) anyway, because it is often heard on TV.

Virgin Active also referred to a number of earlier ASA decisions that have dealt with the word. In particular:

· the Renault case, in which the ASA held that the phrase “I came, I saw, I kicked ass” was not offensive – the ASA Directorate on this occasion made the point that the word “ass” is less offensive than the word “arse”.

· the Art Lab case, in which the ASA held that the term “kick-ass digital printing” was in line with society’s values.

· the Groet die Grotman (Defending the Caveman) case, in which the ASA held that the Afrikaans word for arseholes (“poepholle”) would not harm children, and would not encourage them to use it indiscriminately.

Dealing with the issue of advertising and children, the ASA Directorate first referred to the earlier decisions and said:

“As is evident from the above, the Directorate accepts that the word ‘ass’, while not necessarily preferable to parents, would not likely cause mental, emotional or moral harm to children.”

It then discussed the advertisement’s flighting schedule, and noted that it generally appeared with shows aimed at adults.

Finally, it dealt with the argument that the word “ass” was used excessively – five times in a 42-second commercial. The Directorate had no problem with this, saying that it was “contextualised” and used to encourage a healthy lifestyle.

Moving on to the offensiveness objection, the Directorate noted that it needed to consider the matter from the viewpoint of the “hypothetical reasonable person”. It added that “this approach adopts neither an oversensitive nor a hypercritical perspective, and takes into consideration relevant factors such as the context and likely audience for the commercial.”

The Directorate concluded that it was satisfied that in the context of a humorous and light-hearted commercial, the word “ass” would not cause offence.

Although ENSafrica’s involvement with ASA matters generally relates to trade mark style matters (in other words, matters where there are issues of consumer confusion or copying), we also get involved in other, more general, advertising law issues, such as allegedly misleading or offensive advertising.

GAELYN SCOTT: Head of & Director in ENSafrica’s IP Department ([email protected])