A bold ruling by South Africa's Advertising Standards Authority (ASA) has dismissed all complaints relating to a radio advert which called for a boycott of Israel and compared the Zionist state to Apartheid South Africa. The ruling referred to a message broadcast on South African Broadcasting Company's station 5fm by the lead guitarist of Faithless in support of the South African Artists Against Apartheid collective.
The wording of the message was unequivocal: "Hi, I'm Dave Randall from Faithless. Twenty years ago I would not have played in apartheid South Africa; today I refuse to play in Israel. Be on the right side of history. Don't entertain apartheid. Join the international boycott of Israel. I support southafricanartistsagainstapartheid.com."
In an official complaint to the ASA, the South African Jewish Board of Deputies (SAJBD) attacked the radio advert and alleged that the view expressed that Israel is an Apartheid State is "untrue, not supported by any evidence… and contains a lie which amounts to false propaganda". The Board sought an order requesting the SABC to apologise for broadcasting the advert.
The ASA dismissed each and every complaint made by the SAJBD against the advert and instead ruled in favour of the submissions made by SA Artists Against Apartheid, who were represented by Webber Wentzel Attorneys. The ASA also refused to provide any sanctions in favour of the SAJBD.
Reggae DJ The Admiral, a member of SA Artists Against Apartheid, welcomed the ruling: "The ASA decision is significant due to our own history of Apartheid. The decision sends a clear message to the Zionist lobby that the time has come for an end to the baseless accusations of 'discrimination' and 'hate speech' whenever criticism of Israel is voiced. Calling Israel an Apartheid state is legitimate because Israel practices Apartheid. The boycott of such an oppressive regime should be supported as it was in our own Anti-Apartheid freedom struggle."
South African Palestine solidarity groups have celebrated the ASA ruling, claiming it as a "legal victory" for the boycott of Israel movement. Fatima Vally from the Boycott, Divestment and Sanctions (BDS) Working Group pointed out that, "This is the second major boycott of Israel decision coming from South Africa in less than six months, the first being the historic decision by the University of Johannesburg to sever its Israeli ties. The boycott of Israel campaign is the new Anti-Apartheid Movement, and it's growing rapidly."
Commentators across South Africa have called the ASA ruling a huge step for freedom of speech in general and Palestinian solidarity in particular.
Below is a short summary of the four main issues dealt with by the ASA:
Responding to the SAJBD complaint that the 5fm advertisement resulted in discrimination, the ASA rejected the complaint entirely, stating that a reasonable person would understand clearly that:
"[The advertisement] is a call to all listeners irrespective of their circumstances, race, gender and the like, to support the [cultural boycott of Israel] cause… if anything, it [the advert] is condemning the actions and events in Israel, rather than victimising or castigating people of Israeli origin. Put differently, it is condemning oppressive actions…"
2. Freedom of expression and political speech
SA Artists Against Apartheid submitted that the ASA should take into account the fact that the radio advert was a form of political speech which is protected by the right to freedom and expression under section 16 of the South African Constitution:
"Political expression is of particular importance in a democratic society because it has a bearing on each citizen's ability to formulate and convey information, ideas and opinions about issues of public importance. International campaigns such as the cultural boycott of Israel have a domestic implication as well, as South African citizens are entitled to express their views on the stance that should be adopted by South Africa in relation to Israel."
3. Offensive advertising
Responding to the complaint that the advertisement constituted offensive advertising, the ASA ruled that a reasonable person who is neither hypercritical nor hypersensitive
"…cannot reach a conclusion that this commercial was intended to offend. There are no calls for violence, no derogatory comments flung about, and no implication that all Israelis should be condemned. The commercial states the artist's reason for not performing in Israel, and invites people to join in the cause promoted."
4. The claim that Israel is an apartheid state
SA Artists Against Apartheid submitted that the view that Israel is an apartheid state "is based on a sound factual matrix and the connection between apartheid South Africa and Israel has been made numerous times in the South African media. The claim is therefore justified […] "
SA Artists Against Apartheid successfully disputed the allegation that the reference to Israel being an apartheid state can only be justified by a ruling of an International Court:
"The term "apartheid" is clearly not an exclusively legal term and is recognised as a descriptive term to refer to a situation that exhibits segregation and inequality."
The ASA noted that extensive evidence was submitted in favour of the case that Israel is an apartheid state. Some of these submissions included "reports by a UN Special Rapporteur on the Occupied Palestinian Territories as well as a copy of the International Court of Justice [ruling] concerning the [Israeli Separation] wall in Jerusalem". In addition substantial academic studies, newspaper articles and political cartoons (several by cartoonist, Jonathan "Zapiro" Shapiro) were also submitted justifying the ability to express the view that Israel is an apartheid state.
Furthermore, affidavits by Israeli Professor Uri Davis and former South African Intelligence Minister Ronnie Kasrils were also attached to the SA Artists Against Apartheid submission.
Significantly, the 2009 South African government Human Sciences Research Council report, that found Israel guilty of the crime of apartheid, was also an official submission.