Online deceptive advertising and consumer protection in South Africa - The law and its shortcomings?

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 86-106
• Author: Yeukai Mupangavanhu,Dominique Kerchhoff
• Published date: 01 June 2023
• DOI: 10.17159/2225-7160/2023/v56a7

86 2023 De Jure Law Journal

Online deceptive advertising and consumer

protection in South Africa – The law and its

shortcomings?

Yeukai Mupangavanhu

LLB LLM LLD

Associate Professor, Private Law Department, University of the Western Cape

Dominique Kerchhoff

LLB LLM

Law Educator, Boston City Campus

SUMMARY

E-commerce and e-marketing has grown significantly over the past few

years. More businesses are moving away from original forms of marketing

tools such as newspapers, magazines, billboards and televisions and

instead prefer online platforms such as social media. The article focuses on

false, misleading and deceptive online marketing representations. It

examines the legislative framework that seeks to protect online consumers

in South Africa in terms of the Electronic Communications and

Transactions Act 25 of 2002 (ECTA), the Consumer Protection Act 68 of

2008 (CPA) as well as the Social Media Code1 of the Advertising Regulatory

Board (ARB). It is recommended that although a consolidated statute that

makes provision for both offline and online consumers would be ideal, the

current provisions in ECTA could also be reviewed to ensure that they are

in line with the new developments in marketing trends such as influencer

marketing. The Social Code of the ARB is also important to complement

ECTA and the CPA, as well as to promote the overall protection of

consumers in South Africa.

1Introduction

The rise of the internet and the emergence of social media have created

opportunities for advertisers who are constantly trying to find new ways

to market their goods or services. The buying and selling of goods and

services through electronic networks or over the internet (generally

referred to as e-commerce) has become a new phenomenon in today’s

marketplace and has been on a sharp rise.2 There has been a significant

1 Advertising Regulatory Board “Appendix K: Social Media Code” 2022 https:/

/www.arb.org.za/assets/appendix-k-social-media-(2022).pdf (last accessed

2023-06-12) (hereinafter Social Media Code).

2 De Klerk and Kroon “E-commerce adoption in South African businesses”

2004 South African Business Management 3; Srivasta and Koekemoer “The

legal recognition of electronic signatures in South Africa: A critical

overview” 2013 African Journal of International and Comparative Law 427.

How to cite: Mupangavanhu & Kerchhoff ‘Online deceptive advertising and consumer protection in South

Africa – The law and its shortcomings?’ 2023 De Jure Law Journal 86-106

http://dx.doi.org/10.17159/2225-7160/2023/v56a7

Online deceptive advertising and consumer protection in South Africa 87

shift in consumer behaviour towards the use of e-commerce.3 The

lockdowns imposed by the South African government to deal with the

spread of the coronavirus (COVID-19) pandemic further heightened the

need for e-commerce.4 In the same breath, advertising over the years

has increasingly moved away from traditional tools such as newspapers,

magazines, billboards, and televisions to online platforms such as

TikTok, Instagram, Facebook, and YouTube.5 For example in 2020,

Clicks Retailers advertised on its website TRESemmé shampoo with

images of the hair of four women.6 There was also a “cropped” version

of the same advert on social media which resulted in the TRESemmé

advertisement being referred to the Equality Court since it was regarded

as racist.7 This case is instructive since it demonstrates that businesses

are now advertising their products on their websites and even on social

media platforms.

There is no doubt that the digital era has had a profound effect on how

goods and services are marketed as new avenues are being created to

reach consumers.8 E-commerce has numerous benefits which are,

among others, business efficiency, a substantial reduction in paperwork,

and an increase in revenue as businesses are able to reach new markets

and reduce marketing and promotional costs.9 This makes online

marketing a very effective and efficient marketing strategy for

businesses. People spend a significant amount of time each day

consuming online content.10 Online shopping, however, presents new

challenges in terms of consumer protection and one of the major issues

arising from online shopping relates to misleading or decep tive

advertising.11 The persuasive nature of the information shared makes it

3 Eiselen “Digitisation and consumer law in South Africa and Africa” 2021

TSAR 439; Kariyawasam and Wigley “Online shopping, misleading

advertising and consumer protection” 2017 Information and Communication

Technology Law 73; Singh “The changing face of e-commerce in South

Africa 2001-2004” 2005 Alternation 628.

4 South Africa Government “About Alert Systems” https://www.gov.za/covid-

19/about/about-alert-system (last accessed 2021-11-18). See also Anakpo

and Mishi “Business response to Covid-19 impact: Effectiveness analysis in

South Africa” 2021 Southern African Journal of Entrepreneurship 5.

5 Kariyawasam and Wigley 2017 Information and Communication Technology

Law 73; Vinerean and Cetina et al “The effects of social media marketing

on online consumer behaviour” 2013 International Journal of Business

Management 67. See generally Kotler and Armstrong Global and Southern

African Perspectives: Principles of Marketing (2014) 457-519.

6Baba v Clicks Group Limited 2022 ZAWCHC 32 (hereinafter Baba v Clicks

Group Limited) para 2.

7 See Baba v Clicks Group Limited para 76.

8 Kotler and Armstrong (2014) 457. See also Eiselen 2021 TSAR 437.

9 Singh 2005 Alternation 629.

10 As of 2022, the average daily social media usage of internet users

worldwide amounted to 147 minutes per day. See Statista “Daily time spent

on social networking by internet users worldwide from 2012 to 2022”

https://www.statista.com/statistics/433871/daily-social-media-usage-

worldwide/ (last accessed 2023-05-01).

11 See Kariyawasam and Wigley 2017 Information and Communication

Technology Law 73.