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.

A second bite at the (appeal) cherry, In Thermos Hong Kong Limited v Doshi Ironmongers Limited

In Thermos Hong Kong Limited v Doshi Ironmongers Limited (Civil Appeal (Application) E013 of 2021) [2022] KECA 544 (KLR), the Kenyan Court of Appeal had to determine whether a party had a second right to appeal an appellate decision from the High Court in relation to a trade mark dispute.

To recap, this case was first heard by the Assistant Registrar (“the Registrar”) who agreed to restore the trade mark THERMOS assigned to Thermos Hong King Limited (“Thermos”). On the strength of this restoration, Thermos opposed the application to register the mark THERMOS in the name of Doshi Ironmongers Limited (“Doshi”). Doshi defended the application but was unsuccessful.

Doshi subsequently appealed to the High Court which upheld the appeal and concluded that, after the Registrar had issued its decision, it became functus officio and that the matter must have then been reviewed by a Court.  Thermos sought to appeal this decision before the Court of Appeal.

Doshi objected to the filing of the appeal before the Court of Appeal on the basis that Thermos had no right to appeal to the Court of Appeal in terms of section 21(6) of the Trade Marks Act and Rule 117 of the Trade Mark Rules. Section 21(6) of the Trade Marks Act provides that the decision of the Registrar, relating to the opposition to registration of a trade mark “shall be subject to appeal to the court”. Doshi argued that “the court” in this instance referred to the High Court and not the Court of Appeal and that Thermos did not have a second right of appeal to the Court of Appeal.

In response, Thermos argued that its right of appeal was in terms of section 72 of the Civil Procedure Act and cited a case in which this court had permitted a second appeal to be filed  in a trade mark dispute on the basis of the same section. It further argued that the Trade Marks Act did not expressly exclude the possibility of a second appeal being filed from the High Court in respect of a decision made by the Registrar.

The Court of Appeal agreed with Thermos that there was no express provision in the Trade Marks Act that prevented a second appeal from being filed from the decision of the High Court. It further held there was no evidence that suggested that the legislature had intended for section 21(6) of the Trade Marks Act to make the High Court the court of last resort in matters relating to the registration of trade marks. It held that Thermos had shown that its right of appeal was well founded in law. The application was dismissed with costs.

The decision confirms that appellate trade mark decisions from the High Court in Kenya may be further appealed to the Court of Appeal. Not only does the Court have jurisdiction to hear such a case, but there is a right of appeal enshrined in statute.

Petition made on constitutional grounds to the Kenyan High Court to protect image rights

In this matter[1] Rafiki Microfinance Bank Limited, the Respondent, used an image of Mutuku Matingi, the petitioner, on its pamphlets in the promotion of its credit or financing facility, “Get a boda”, for the purchase of motorcycles, also known as a “boda boda” in Kenya. The Petitioner was a boda boda driver and made a living transporting people and goods. The photograph or image of the Petitioner had been taken by a photographer at a branch of the Respondent.

The Petitioner averred that he had not consented to the Respondent’s use of his photo or image for the purpose of its advertisement or promotions and sought a declaration that the Respondent had violated his right to human dignity and privacy as envisaged in articles 28 and 31 of the Constitution.[2] The Petitioner also sought a declaration that the Respondent subjected him to slavery, servitude and forced labour in terms of article 30 of the Constitution as the advertisement was for the Respondent’s commercial gain with no financial advantage gained by the Petitioner.

In response, the Respondent alleged that the Petitioner had consented to his photograph being used for the Respondent’s promotion. The Respondent could not, however, produce any evidence to prove that it had obtained consent from the Petitioner to use his image.

The court held that the right to dignity includes the right-bearer’s entitlement to make choices and decisions that affect his life.[3] The court therefore held that the publishing of the Petitioner’s image, depicting him as a recipient of a credit facility, violated his right to dignity.

With respect to the issue of privacy, the Court held that the right to privacy encompasses the protection of personality rights, including one’s image or likeness, and includes the avoidance of the publication of private photographs. It further held that every individual has the exclusive right to market their image for financial gain, [4] and that the use or use of an individual’s image, without his consent, violates his right to privacy.[5]

On this basis, the Court upheld the petition and ruled that the Respondent had violated the Petitioner’s fundamental rights of privacy and dignity and ordered a permanent injunction against the Respondent to restrain its conduct and compel it to refrain from further use of the Petitioner’s image without consent. In addition, an award of damages and costs were made in favour of the Petitioner[6].

This case reinforces that personality rights fall within fundamental rights enshrined in the constitution and are entitled to protection on this basis.

Of course, this is but one basis on which image rights can be protected. Remedies may also be sought on other grounds including unlawful competition in certain circumstances.

[1] Republic of Kenya, in the High Court of Kenya at Machakis (Coram: Odunga, J) constitutional petition no.10 of 2020 in the matter of application under articles 22, 23, 165(3)(b) of the Constitution of Kenya and In the matter of : alleged contravention of fundamental rights and freedoms under articles 19, 22, 23, 25, 27(1), 28, 29(d) 30 &31 of the Constitution of Kenya and In the matter of: the Constitution of Kenya (Protection of rights and fundamental freedoms) practice and procedure rules, 2013 and In the matter of Constitution of Kenya rights enshrined in Chapter Four thereof in so far as the petitioner’s constitutional rights were infringed between Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited.

[2] The Constitution of Kenya, 2010.

[3] Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14.

[4] Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR .

[5] T O. S vs Maseno University & 3 others [2016] eKLR.

[6] Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited supra at paragraphs 57 (a) to (d).