A “cropped” social media version of the infamous TRESemmé shampoo advert was the probable cause of the public furore and nationwide protests in 2020, the equality court found this week.
The full advert, which had been displayed on the Clicks website, did not unfairly discriminate against black women, the court ruled.
The court was referring to the nationwide protests at Clicks stores in September 2020 after images went viral of four women’s hair accompanied with the words “dry and damaged hair”, “frizzy and dull hair”, “fine and flat hair” and “normal hair”. The “dry and damaged” and “frizzy and dull” hair accompanied images of black women, while the “normal” and “fine and flat” hair featured images of white women.
Clicks and Unilever SA, which produces and markets TRESemmé in SA and prepared the original advert, apologised and took a number of remedial steps. A settlement was reached with the EFF, which led the protests.
But Ntombizodwa Baba and 17 other black women took Clicks and Unilever’s holding company to the equality court, arguing that the advert was racist, demeaning to them and amounted to unfair discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act.
“The simple message I got ... is that my hair is inferior, ugly and abnormal, while a nonblack woman’s hair is superior and beautiful,” Baba said. “This, I submit, is wrong, hurtful and unlawful and impairs my dignity.”
But the Western Cape equality court dismissed the case this week. Judge Mokgoatji Dolamo said the women had not been clear whether they were offended by the original advert as it was displayed on the Clicks website or by the cropped images that appeared on social media. The original advert had been on the website for four months and hadn't drawn any comments until September 4 when “an unknown person” posted the images on social media.
Dolamo said that, on the objective facts, the images that were the “probable cause of the furore were those that appeared on social media and for which the respondents were not responsible”. The original advert “did not even cause the slightest discontent, let alone public outcry” until the social media posts and did not amount to unfair discrimination under the Equality Act.
The applicants did not set out facts which proved that the impugned advertisement directly or indirectly imposed any burdens on them or settled them with any obligations or disadvantages” as required by the Equality Act Dolamo said. “Nor were they able to prove that benefits, opportunities or advantages were withheld from them because they were black.”
All they could advance was that the advertisement was offensive and hurtful, the judge said. This was not enough to establish unfair discrimination. It was also not intentionally commissioned with the object of offending black women, the judge said.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.