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The respondent had attempted to comply with the relevant regulations, and
is therefore not in breach of clauses 4.1 and 4.2 of Appendix A in so far as
they related to the complaint before the Directorate.
Comments: The Directorate also accepted the respondent’s undertaking to remove
certain claims on condition that the claims were withdrawn with immediate
effect and not used again in the future.
2. Misleading
Advertising
Topic: Section I , Clause 1.3 (“fair competition”), Section II Clauses 2, 4.1, 4.2.1 and 6
of the Advertising Standards Authority (ASA)’s Code of Advertising Practice
(“honesty”, “substantiation”, “misleading claims” and “disparagement”)
Who: ASA Directorate of South Africa
When: April 2005
Where: South Africa
What Happened: HSBC lodged a competitor complaint against a BoE Clients print
advertisement published in the Business Report dated 23 February 2005.
The advertisement was headlined: “Dear HSBC Client/Commodity” and read
“So you’ve been sold off to the highest bidder? Perhaps it’s time to consider your
options. With 18.5 billion under management, BoE Private Clients is the largest
private asset management company in South Africa, offering you: top quartile
investment performance, a Swiss model personalized home office banking service,
financial structuring, will preparation and advice, trust account, trust account
structuring and management, as well as tax structuring and consultation. So if
you’re looking for a true personalized service, give us a call.”
The complainant submitted that the respondent was in breach of the ASA’s
Code in that the advertisement was not an example of acting honestly and
fairly with due skill, care and diligence in the interests of clients and the
financial services industry. Furthermore, it complained that the advertising
was misleading in that it created an impression that the whole of HSBC’s
business operations in South Africa had been sold to a third party, as well as
being unclear from the advertisement as to which legal entity the public
would be dealing with should they have responded to the advertisement
placed by the respondent. The advertisement was damaging to HSBC’s
reputation and its clients.
The respondent advised that on the same day that the advertisement
appeared, it was withdrawn following discussions between the parties.
Despite having withdrawn the advertisement, the Business Day in KwaZulu-
Natal published the advertisement on 2 March 2005, the Business Day
furnished the respondent with a written apology which was submitted to the
ASA as part of the response. Furthermore, the respondent gave an
undertaking to never in the future use the material content of the
advertisement in question.
The Directorate considered the matter and accepted the respondent’s
undertaking on condition that it was withdrawn immediately and never
used again in future.
Comments: The Directorate came to the conclusion that since the ASA serves as a forum
to finalise disputes, it was unnecessary for the Directorate to consider
whether the Code had been breached, as the matter was finalised by means
of an undertaking from the respondent.