The TRESemmé hair advert that sparked protests at Clicks stores across SA last year was never intended to hurt or offend black women, Unilever SA and Clicks have told the Equality Court.
The companies are fighting a case launched last year by 18 women who have asked the court to declare that the advert was “offensive, unlawful, racist and demeaning to black women”.
The advert was produced by Unilever SA and published by Clicks. A version circulated on social media contrasted the “dry & damaged” and “frizzy & dull” natural hair of black women with the hair of white women, described as “normal” and “fine and flat”.
After a public outcry, both companies apologised and took remedial steps.
But Ntombizodwa Baba and the 17 other women say this is not good enough. In what could be a precedent-setting case, they say the advert breached sections 7 and 12 of the Promotion of Equality & Prevention of Unfair Discrimination Act (the Equality Act). Section 12 deals specifically with discriminatory advertising “that could reasonably be construed … to demonstrate a clear intention to unfairly discriminate against any person”.
Baba says in the court action: “The simple message I got … is that my hair is inferior, ugly and abnormal, while a nonblack woman’s hair is superior and beautiful. This, I submit, is wrong, hurtful and unlawful and impairs my dignity.”
According to Unilever SA’s court papers, when the ad was first published on the Clicks website, it had six pictures of women, each with “hair-care concerns” — colour-treated hair, dry and damaged hair, fine and flat hair, frizzy and dull hair, normal hair, and styling. These are hairdressing “industry terms” and a user could click through to access products specific to each, says Unilever SA’s general counsel Sydney Shoniwa in his affidavit. However, he says Unilever has come to realise “with regret” that industry terms can be misunderstood in the public domain.
The simple message I got … is that my hair is inferior, ugly and abnormal, while a nonblack woman’s hair is superior and beautiful
He says the advert was on the Clicks website for more than a year without any negative reaction. But on September 4 a tweet was circulated that “only included four of the six product category buttons”.
Shoniwa says that when the advert was viewed as it was supposed to be published, there was no breach of the act. However, Unilever acknowledged that it should have ensured that “all pieces of content placed on the website, even when viewed out of context, sufficiently clearly reflected Unilever SA’s intent to promote diversity and cater to the hair needs of all women”.
Matthew Welz, head of legal at Clicks, says in his affidavit that the retailer acknowledged that it was offensive and took remedial steps — including taking the brand off its shelves. However, the advert did not unfairly discriminate against the women, he says. “The applicants have failed to make out a case of unfair discrimination as the advertisement … does not meet the definition of ‘discrimination’ [in the act].”
He also says the 18 women offered no evidence to show that those behind the advert intentionally commissioned it “with the object to belittle, hurt, mock and ridicule black females”. The order sought by the women — that Clicks and Unilever SA pay 10% of their annual net profit to black women’s empowerment organisations for 10 years — would entail the payment of “billions of rand”. Yet no serious justification for this was provided, other than to send a “strong message”, says Welz.
Replying to these affidavits, Baba says the companies’ intentions were not relevant in determining whether the advert had discriminated on the grounds of race. The companies had been “hypocritical” in their apologies — on the one hand acknowledging that the advert was offensive yet now denying that it breached the act. She says the law provided for remedies that are of a “deterrent nature”. “An apology is the start but not the end … where there is no proper redress there is a tendency for the … Bill of Rights to be infringed.”
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