In its latest Broadcast Bulletin, Ofcom has resolved a complaint against Channel 4 relating to an advertisement for a film which invited viewers to send in Tweets on what they thought of the film, and then broadcast the positive Tweets from viewers in a subsequent advert. The complaint alleged that the broadcast confused viewers as to whether they were watching an impartial continuity announcement or a paid advertisement. Although Ofcom considered that there were several aspects of the material that would give rise to confusion as to the nature of the piece, they determined the matter to be resolved as Channel 4 had introduced subsequent policy changes to ensure that similar confusion did not occur again.
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In its latest Broadcast Bulletin, Ofcom has resolved a complaint against Channel 4 relating to an advertisement for a film which invited viewers to send in Tweets on what they thought of the film, and then broadcast the positive Tweets from viewers in a subsequent advert. The complaint alleged that the broadcast confused viewers as to whether they were watching an impartial continuity announcement or a paid advertisement. Although Ofcom considered that there were several aspects of the material that would give rise to confusion as to the nature of the piece, they determined the matter to be resolved as Channel 4 had introduced subsequent policy changes to ensure that similar confusion did not occur again.
Introduction
During an episode of Homeland aired on Channel 4 in April 2012, Channel 4 broadcast content about the film Prometheus in two of the advertising breaks. The first showed a full-screen Channel 4 logo, as the continuity announcer introduced the trailer for the film Prometheus and invited viewers to send in Tweets expressing their opinion using the hashtag #areyouseeingthis. The trailer was then shown. The next advertising break featured a number of these viewer Tweets on screen, all of which expressed a positive view of the film, including "Prometheus is shaping up to be the best film of the year", and "Awesome cast, fantastic director. Can't wait". The Channel 4 announcer then stated, "Ridley Scott is back to the genre he defined and we are massively excited about it. Prometheus in cinemas June 1st. Book your tickets now".
Complaint
A viewer complained to Ofcom that the content "totally
confuses the viewer about whether they are watching an impartial
continuity announcement or a paid advertisement".
The Audiovisual Media Services Directive requires advertising to
be readily recognisable and distinguishable from editorial content
(Article 19). Rule 11 of the Code of Scheduling of Television
Advertising (COSTA) states:
"Broadcasters must ensure that television advertising and
teleshopping is readily recognisable and distinguishable from
editorial content and kept distinct from other parts of the
programme service. This shall be done by optical (including
spatial) means; acoustic signals may also be used as
well."
This is reflected in further provisions in the Ofcom
Broadcasting Code and the Broadcast Committee of Advertising
Practice (BCAP) Code of Broadcast Advertising, with the BCAP Code
stating explicitly that "the audience should quickly
recognise the message as an advertisement" (rule
2.1).
Ofcom investigated the complaint under Rule 11 of COSTA, and
requested a response from Channel 4 indicating how the material was
in compliance with this rule.
Decision
Ofcom noted that Channel 4 had deliberately inserted a black
screen broadcast immediately after the programme followed by a
Channel 4 ident with a white background and the word
"Homeland", to show viewers that the programme part had
ended and indicate the start of the advertising break. Ofcom
considered that viewers would be unlikely to doubt that the
programme had been interrupted for a break.
However, Ofcom stated that the style of presentation of the
Prometheus material had risked confusing viewers as to its
nature. Simply inserting material in a break between
programmes is not sufficient to identify it as advertising –
breaks often contain non-advertising content such as programme
trailers or news updates. Ofcom considered that although the
first advertisement contained aspects that would normally be
recognisable as advertising, such as the film trailer and release
date, they were accompanied by other elements that are more usually
associated with editorial content, such as the use of the
channel's logo, the voice of the channel's continuity
announcer, and use of language that suggested endorsement and
ownership of the material, such as "we bring you a
worldwide exclusive" and "we'd love to know
what you think".
Ofcom also took into account the fact that the Tweets that were
displayed in the second advert all expressed a positive view of the
film, and considered that viewers may have been confused as to
whether they were viewing a selection of Tweets selected by Channel
4 for editorial reasons or for advertising purposes.
In its response Channel 4 had submitted that it was not in breach
of COSTA or the BCAP Code, and stated that both advertisements had
been cleared in advance by Clearcast, the broadcasting industry
body that assesses television adverts on behalf of broadcasters
before transmission. However, in spite of this, Channel 4
also set out a number of policy changes it had subsequently
introduced to prevent any similar issues of confusion from
occurring again. These changes included featuring text at the
start of any similar advertisements stating that it is an
advertisement, which is no longer an express requirement since the
BCAP Code was revised in 2010 (though advertisers remain obliged to
distinguish clearly between editorial content and advertising), and
ensuring that any Channel 4 announcer featuring on the voiceover
for the advert is not working on that channel on that day, to help
prevent any confusion.
Ofcom stated that, although it was concerned about the extent to
which the material was recognisable as advertising, in light of the
changes introduced by Channel 4, and in particular the decision to
include text clearly marking the material as advertising, Ofcom
considered the matter to be resolved.
Comment
Soliciting viewer feedback via social media, and then using the
messages submitted, is now a well-established practice in
programming. However, it is now also becoming increasingly
common in advertising. Ofcom clearly considers that it
carries with it the risk of a blurring between editorial and
advertising resulting in consumers being unsure of the manner in
which the user-generated content is being used. This is
illegal under the Consumer Protection from Unfair Trading
Regulations, which bans the promotion of products by way of the use
of paid-for editorial content without making it clear to consumers
that the content is advertising. It is also in breach of
various codes of practice.
In this case Ofcom was satisfied that the precautionary steps now
introduced by Channel 4 will avoid consumers being misled by the
content. Advertisers seeking to use user-generated content in
this way would be well advised to adopt the same principles.
Advertisers should also be aware that content solicited and re-used
in this way could be regarded as misleading if they cherry pick
positive responses and ignore negative ones; and that the fact that
the content is user-generated does not mean that it falls outside
the CAP and BCAP Codes. Also, copyright is likely to subsist
in user-generated content, and there is a risk of a copyright claim
if the appropriate licence is not obtained.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 26/10/2012.