ANALYSIS: Why the Chicken Licken ad deserved to lose its appeal
We look at its mistakes that made this loss inevitable, and why the ruling nonetheless sets a dangerous precedent
It was inevitable that the Chicken Licken advert would remain banned after Joe Public advertising agency founder Pepe Marais tied himself into a knot in trying to argue that it really was not about colonialism.
Instead of choosing to argue freedom of expression, Marais almost seemed as if he himself did not believe the argument he made before the appeal committee of the Advertising Regulatory Board a month ago, often making concessions following questions from the panel. In Marais’s words, the advert shows Big Mjonana setting off on “fantastical” journey – fighting a jellyfish, feeding a panther and landing in a new land in 1651. There “so happens” to be a man looking like Jan van Riebeck when Big Mjonana arrived on the continent he then named Europe.
Marais said “only part of the commercial ... could potentially refer to colonialism”, while for most viewers –based on their responses on social media – it was clear and simple that the advert was a tongue-in-cheek take on colonialism.
There was, however, one complaint that it made a mockery of the struggles of the African people against colonisation, leading to the decision to ban it. Joe Public, on behalf of Chicken Licken, argued to have the ban overturned. But its attempts failed and last week the regulatory board’s appeal committee upheld an earlier ruling that the “Big Mjonana” ad was offensive and must never be aired again.
But in oral arguments at the board’s first appeal, Marais and Joe Public partner Xolisa Dyeshana decided to argue that the advert was not about colonialism.
Marais said: “And in the end he just so happens to land on the shore of a foreign land. This is the only part of the commercial that could potentially refer to colonisation.”
He and Dyeshana’s argument was that the advert was not about the “racial superiority, enslavement and indentured servitude” caused by colonialism across Africa, but that Big John had gone on a journey of “discovery”.
Their other argument was that it did not offend most people based on detailed market research commissioned by Joe Public after the outcry. Marais noted that a democracy relies on a majority.
“We are here because one person who may have been having a bad day,” said Marais, referring to the single complaint.
When questioned by the panel, Marais conceded points on every argument he had made. Head of the panel, advocate Gcina Malindi SC, asked him: “There are pointers of colonialism in the advert viewed as whole.”
Marais responded: “I concede that.”
He then conceded that if the contents of the advert had the potential to upset people, it would be problematic.
Malindi asked: “If any connotation in the advert to colonialisation, invokes those emotions and feelings [of sadness] would you agree that it would be offensive? In your defence, it doesn’t. But if it does, are you conceding it would invoke those feelings?”
“Yes,” said Marais, apparently contradicting himself. He had said earlier that the majority opinion should decide whether an advert was acceptable, and later he seemed to acknowledge that one complaint, if serious, against an advert was justifiable.
Based on the poor oral arguments made before the appeal board, Chicken Licken deserved to lose.
But now the advertising regulatory board is in the dangerous territory of a setting a precedent: if one person is seriously offended by certain controversial “no-go” topics, an advert can be pulled.
If this advert appeal goes further – and it may – lawyers need to argue about freedom of speech, which was barely raised during Joe Public’s oral arguments. The problem here was not the advert, but how Joe Public chose to defend it. And the ban remaining in place is a sad day for advertising.
Marais made a throwaway comment that Chicken Licken is one of the only companies that gives them free rein to make an advert as they wish and as a result “they are really proud of this level of work”.
He said it was unusual in the advertising industry for companies not to interfere in the agency’s work.
But that level of work won’t survive if any advert offensive to a single person can be banned. This is how Marais ended his oral arguments: “If we start over-governing what people should think in a world in which people don’t think enough, you will take the essence out of the ad industry.”
What Marais fears is exactly what this ruling will allow: an unoffensive, dull, politically correct advertising industry walking on eggshells and being too afraid to be funny or inspiring.