LEGAL VICTORY

SA Artists Against Apartheid win significant case.
PART A: LEGAL VICTORY
In a bold ruling defending the right to freedom of expression and political speech, the South African media watchdog, the Advertising Standards Authority (ASA), unequivocally dismissed all complaints relating to the  SA Artists Against Apartheid radio advert that called for the boycott of Israel and compared Israel to Apartheid South Africa.

In February this year, during the South African tour of the UK dance band, Faithless, a radio message featuring Dave Randall (lead guitarist of Faithless) was broadcast on 5fm, the mainstream South African radio station with over 2 million listeners. The advert was in support of the South African Artists Against Apartheid collective. In the advert Randall says:
"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."

The advert was posted on youtube, receiving thousands of hits in just a few days. Randall's message, in support of southafricanartistsagainstapartheid.com was met with immediate celebration, and attack. It was reported that 5fm was "inundated with calls, facebook messages and tweets".


Attempting to limit the right to freedom of expression of SA Artists Against Apartheid, the South African Jewish Board of Deputies (SAJBD) attacked the radio advertisement. In an official complaint to the ASA, the SAJBD 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 SAJBD sought an order requesting the South African Broadcasting Corporation (SA's National TV and radio broadcaster that own the 5fm radio station) to apologize for flighting the radio advert.  
 

In a significant legal victory for Palestinian solidarity as well as freedom of political speech, the ASA released a ruling on 5 July 2011, dismissing each and every complaint made by the SAJBD against the advert and instead ruled in favor of the submissions made by SA Artists Against Apartheid. The ASA also refused to provide any sanctions in favor of the SAJBD.

Reggae DJ, "The Admiral”, and member of the SA Artists Against Apartheid collective, welcomed the ASA decision:
“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 said in a press release:
“This is the second major boycott of Israel victory 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 is the new anti-apartheid movement, and its growing rapidly.”


PART B. OFFICIAL ADVERTISING STANDARDS AUTHORITY  DOCUMENTS
IV. ASA RULING [05 July 2011]


PART C. RELATED ITEMS
>> Adams & Adams: The ASA rules on Advocacy Advertising 
>> COSATU and CWUSA: Press Release
>> The Jerusalem Post: Israeli Apartheid not in contravention of rules
>> SAPA: Advertising Authority dismisses complaints about Apartheid Ad
>> Open Shuhada Street: Press Release 
>> PACBI: Press Release
>> Screen Africa: ASA rules in favour of Israel Boycott Ad


PART D. BRIEF SUMMARY OF THE ASA RULING
1. Discrimination
Responding to the complaint that the SA Artists Against Apartheid radio advert resulted in discrimination, the ASA rejected the complaint entirely, stating that the reasonable person would clearly understand 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 artists' 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 recognized as a descriptive term to refer to a situation that exhibits segregation and inequality.”
The ASA noted that extensive evidence was submitted in favor 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 popular South African cartoonist, Jonathan “Zapiro” Shapiro) were also submitted justifying the ability to express the view that Israel is an apartheid state.
Furthermore, sworn 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.