Most Read Contributor in South Africa, September 2016
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
"If you're feeling kind of
bummed that you're not having all the fun, get off your
"If you think the world's
against ya cos your nice pants they don't fit ya ... get off
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
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
It then discussed the advertisement's flighting schedule,
and noted that it generally appeared with shows aimed at
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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