Not licked yet: fight over Chicken Licken ad ban rages on
Now lawyers argue the ad is not about colonialism, and besides, the law and Constitution would allow it even if it were
Even if the Chicken Licken advert were offensive, regulators should allow it to air in a democratic, open and tolerant society.
This is the latest argument in the protracted legal battle to have the controversial “colonialism” advert unbanned.
Advocate Phumlani Ncgobo argued this on behalf of Chicken Licken and its advertising agency, Joe Public, in their third bid on Friday to have the ban reversed.
In the advert a Zulu man, Big Mjohnana, sets off in 1651 on a “fantastical” journey and lands in a new country with a man looking like Jan van Riebeeck. Big Mjohnana names the place Europe.
The Advertising Regulatory Board (ARB) withdrew the advert in December after a single complainant, Sandile Cele, said it made a mockery of the struggles of African people against colonialism. The first appeal panel at the ARB upheld the ban.
Industry players said the restriction had ruffled feathers in the advertising sector and Joe Public founder Pepe Marais said too much restriction “will take the essence out of the ad industry”.
On Friday, on Joe Public’s behalf, Ncgobo argued in the second appeal before Judge Bernard Ngoepe and three industry experts.
The second appeal had three points:
That the advert was not about colonialism;
That it was not offensive; and
Even if it were about colonialism and even if it were offensive, the law and Constitution allow it.
Ncobo said: “The advertisement it is not offensive. Even if it is offensive, to borrow the language of the Constitutional Court, it is the kind of offence in an open and democratic society such as ours … that ought to be tolerated.”
He said the advert did not cause harm, was clearly satirical, exaggerated and fictional. The advertising self-regulatory legal code allows satire and exaggeration.
Ngoepe asked if certain horrific crimes in history could be the work of satire.
“I have been to Germany. I have been to Rwanda. Is it possible to satirise an event like that the killing of Jews ... the genocide in Rwanda?”
Ngcobo answered: “Chairperson, respectfully, yes.”
The advocate said even horrific crimes could be satirised if done in the appropriate manner which did not emotionally “injure” people.
“What is important is the specific context and the way it is done.”
He said that when debating whether or not colonialism could be satirised, one had to take note of the tone and style of the Chicken Licken advert.
“What ought to hold sway are the particular facts of this case.
“It was done with sensitivity. It is intended to be humorous and is received by a body of diverse audiences ... No reasonable person here ought to find events in the way they are satirised ... off the table.”
Ncgobo used market research conducted on the 193 people after the ban that showed most people found it funny or were indifferent to it. He also quoted social media and radio interview comments to reveal many found the advert acceptable.
“I love this advert. I am black and it doesn't offend me,” read one comment on social media .
The complainant, known as Mr Cele, who has not been publicly identified, argued in writing that he was taught in school that SA only “began” in 1652 when colonisers landed.
“It is evidently impossible that any indigenous African or proudly South African will find this advertisement empowering and even humorous when taken in its context,” the complainant said in his written argument to the appeal board.
Joe Public’s lawyer disagreed.
Ncgobo quoted other black people who studied history and liked the advert.
In a radio interview someone said: “I am a black person myself. I enjoyed history and I understand history very well. I find nothing offensive because you can see humour of parts of the advert itself and you can understand it.”
Ncgobo said: “He [Mr Cele] reads into the advertisement in fact what is not in the advertisement. I say all of this with great respect.
“Mr Cele says that advertisement makes a mockery of the awfulness of colonialisation. He is wrong, the advertising does no such thing.”
Ncgobo also argued that the advert was not actually about colonialism.
It not did not show the “historically dominant race” in a position of superiority.
“We say, in summary, it is not about colonialisation. It is not how colonialisation historically worked.”
But Ngoepe asked: “Does it fool anybody, don’t you know the history of this country?”
Speaking after the hearing, ARB head Gail Shimmel said she believes the self-regulatory body should be allowed to restrict offensive adverts that “trigger” people. This was because “if there are no rules, there will be somebody, somewhere, sometime that crosses the line absolutely. They will think they are pushing the envelope.”
She admitted it can be hard to determine what is offensive because it changes and is a “moving target”.
“That is where Constitution comes in. If the Constitution would allow this advert, this advert must be allowed.”..