This follows a consumer complaint against the radio station and a series of 30-second radio commercials and “live reads” broadcast on CapeTalk, which promote the Outsurance Pointsmen programme.
The Complainant contends that the advertising creates a misleading impression that the Outsurance Pointsmen service is presently available to motorists in the City of Cape Town, when this is not the case, and that the frequency and repetition of the advertising is likely to reinforce this impression among consumers in the area concerned.
The live reads state that "the Outsurance Pointsmen are here to save the day" and that these "heroes in green and purple have been easing traffic congestion for the past 20 years."
Each variant closes with the identical core message: that the Outsurance Pointsmen help road users "get where we need to be, quickly and safely," framed as "another way you always get something out."It also contains a social media call to action using the hashtag "#PointsmenLove".
However, the Outsurance Pointsmen have not been permitted to operate within the City of Cape Town metropolitan area for a period exceeding 10 years, and that no such service is, in fact, provided to motorists there.
The Complainant further noted that, given the frequency and volume of the broadcasts, the representation that the service is available in the City of Cape Town is repeated to listeners on a continual, daily basis.
The Complainant also states that he previously attempted to raise this concern directly with the radio station's management, and that his attempts to do so went unanswered.
In response, the Advertiser states that the Outsurance Pointsmen project was established in 2005 by Traffic FreeFlow in partnership with Outsurance, and therefore the Pointsmen "have been easing traffic congestion for the past 20 years", and this is a factual reference to this history, rather than a representation as to any specific area of operation.
The Advertiser confirms that the Pointsmen service is not presently provided within the City of Cape Town itself, and that its presence in the Western Cape is limited to the municipalities of Paarl and Stellenbosch.
But the Advertiser submits that the advertisement does not represent that the service is available in Cape Town, or in any specific jurisdiction, and that the broadcast reach of CapeTalk Radio Station extends beyond the municipalities in which the Pointsmen service is provided, in a manner it submits is comparable to its radio advertising of the Pointsmen service through partner stations in Gauteng.
The Advertiser further submits that the advertisement must be assessed from the viewpoint of the hypothetical reasonable person, who is neither oversensitive nor overcritical, and would not be misled into believing that the service is available throughout the entire broadcast reach of the radio station.
The Advertiser relies, in this regard, on a previous ARB ruling in File 4451 (Life Hair Clinic) concerning broad or generic advertising statements and further contends that the Complainant's own submission is internally inconsistent, in that the Complainant accepts that infrequent broadcasting of the advertisement would not be objectionable while contending that frequent broadcasting of the same representation renders it dishonest.
On these grounds, the Advertiser requests that the complaint be dismissed.
The following clauses were considered in this matter:
Having considered all the material before it, the Directorate of the ARB issues the following finding:
It is the Directorate’s assessment that the Advertiser should have reasonably foreseen that airing the advertising in the geographical context of the Cape Town Metropolitan Area, the principal audience of the radio station, would result in it being factually misleading.
The Advertiser's comparison to its Gauteng radio partnerships does not assist it on this point. The question is whether, in respect of this advertisement and the geographical context of its broadcast, the complete absence of any geographic qualification is likely to mislead the ordinary listener within the area principally reached.
The Directorate found that the advertisement contravenes Clause 4.2.1 of Section II of the Code, in that it is, by omission, likely to mislead consumers within the City of Cape Town Metropolitan Area as to the availability of the Outsurance Pointsmen service in that locality.
