“Somebody has to be able to say, ‘Prove what you’ve said'”: Gail Schimmel and the Need for Regulation in Advertising

24 Oct 2018
“Somebody has to be able to say, ‘Prove what you’ve said'”: Gail Schimmel and the Need for Regulation in Advertising

By Nick Mulgrew

In many people’s lives, the most powerful messages and communications that they receive are not political or artistic, but commercial. On social media, on the airwaves and in print, brands and advertisers are vying to convince people to buy goods or use services, or to implant social values that might make them more receptive one day to buying those goods or services. In this way, advertising is as much a part of our media and our national discourse as editorial content, and thus fall under the ambit of regulation, and discussions of freedom of speech.

Freedom of speech, commercial or otherwise, has checks and balances to keep it remaining a freedom, and to keep it from impinging upon other rights, such as one’s right to the protection of dignity. As such, it is important that advertising is subject to processes by which citizens can lodge binding complaints about inappropriate or misleading commercial communications. In traditional media, communications are held to account by the law, by consumers, and by self-regulation. But on social media – as with the proliferation of fake news – the deliberate misleading of consumers has no real-world repercussions for those that do it, other than those that are enforced by the platform, such as suspending or banning user accounts.

Up until last month, the Advertising Standards Authority of South Africa (ASA) was the advertising and marketing communications industry’s body for self-regulation, an independent body set up and paid for by the industry. Due to historical debt, however, the ASA was put into a liquidation process last month. It will be replaced next month by the Advertising Regulatory Board (ARB). The ARB will fulfil the same mandate, with the exciting imminent addition of an appendix aimed specifically at social media.

PEN SA caught up with member Gail Schimmel at a crossroads in her career. The outgoing CEO of the ASA and incoming CEO of the ARB, she presented the new draft Social Media Rules to professional industries at the Social Media Landscape Conferences last week in Johannesburg and Cape Town. In a break during the Cape Town conference, we spoke to Gail about the ASA’s demise, the ARB’s creation, and why we need commercial communications regulation for social media.

The Social Media Rules, which can be downloaded here, are up for comment to the industry until the end of the year.


First of all, Gail, what’s going on with the Advertising Standards Authority? Why did it go into liquidation?

When I came on to the ASA, there were two challenges: a legacy debt, and a funding system. We re-established the funding system, so by the time we closed at the end of last September, we had more money coming in than we were spending. We also cut down expenses. But the debt – which was R6million, the bulk of which was owed to SARS because of a strange past decision not to pay PAYE – was much more challenging. We raised R2 million, and the business rescue consultants met with SARS, who indicated that they were happy with the offer. However, in a formal meeting of the creditors, SARS and one other creditor rejected the offer, sending the ASA into liquidation. We looked at mechanisms of fighting it, but basically it had reached a point where the industry had put too much effort into keeping the body alive, when what it should have been focusing on instead was self-regulation itself.


Will there be any difference between the ASA and ARB?

It differs in some ways, but it’ll mostly stay the same. We’re free of a lot of baggage of the past: the debt, some pending ligitation. We’re downsizing more, and reviewing processes, making appeals processes more streamlined. There are some pleasing changes there – very technical, but something the ARB is happy to drive.

It’s also an opportunity to bring in members again who had drifted away and who had refused to bind themselves to the Code of Advertising Practice. Hopefully then we’ll see the rebirth of a well-funded industry body, as it was ten years ago, when I first left the ASA.


Why should people care, though, about the ASA or ARB? What’s your understanding of the overlap between advertising standards and society, and freedom of speech?

I think that self-regulation is first and foremost a way of protecting freedom of speech. Self-regulation is an industry’s attempt to stop over-regulation by the government. In terms of advertising, it’s an attempt to stop over-regulation of commercial speech. Obviously, freedom of speech, like all freedoms, is subject to limitations. The limitation in this case is that you cannot mislead consumers or offend consumers, be racist, or any of those things, simply because you appeal to “freedom of speech”.

This month, because we’re in a regulatory gap, technically any advertiser can say anything, and I find it very distressing.


How does an advertising code for social media fit into this?

So we can be protected wherever we are. I’m a parent of young children, and they’re exposed to advertising in a way that I was never exposed to it. The regulation needs to stop people from being misled in new ways. The protection is often in place for those people who don’t have the education or sophistication to weed out rubbish from truth.


It’s about making advertisers, or anyone really, accountable for what they say. People might think it’s overreach, but I suppose it has precedent. In traditional media, for example, publishers or editors were (and still are) legally liable for everything they publish. Social media is a bit of a lawless place, the codes of conduct of specific platforms aside. Is this was the Social Media Code of the Code of Advertising Practice is for?

Somebody has to be able to say, “Prove what you’ve said”. And someone has to be able to say, “That’s stepping over the line.” One of the reasons that it is important in advertising is because advertising can be a vehicle of social engineering. If advertisers can get away with showing negative stereotypes, they become even more entrenched.

Our views are informed by communication. You might think your views are being informed by an op-ed piece you read, but it’s also being informed by the washing powder ad.