There were high hopes that the recently published Communications Bill would explicitly pave the way for greater self-regulation in TV advertising controls.
Who: The Department for Culture, Media & Sport and the Department of Trade & Industry
When: Late November 2002
The government published the second draft Communications Bill on the eve of its first reading in parliament during the first week of December 2002. This is a massive 844 page, 400 clause tome, but here on marketing law we will focus on the provisions of relevance to broadcast advertising.
In the run-up to the second draft's publication, there had been much ad industry optimism, following certain pronouncements by government ministers, that the bill would warmly embrace self-regulation as the new guiding spirit of TV and radio advertising control. Many envisaged a medium term solution involving the extension into the broadcast advertising arena of the self-regulatory Advertising Standards Authority/Committee of Advertising Practice scheme for non-broadcast advertising. However, all such hopes received something of a knock on publication of the second draft of the bill. All it stated in this context was that in approaching the question of broadcast ad regulation, the new super regulator OFCOM, should "have regard to the desirability of promoting and facilitating the development and use of effective forms of self regulation".
Similar warm, but non-specific words were uttered by Secretary of State for Culture, Media and Sport Tessa Jowell when she spoke at the launch in late November 2002 of "Mediasmart". This is a media literacy project backed by a range of big advertisers, broadcasters and trade associations to promote a better understanding of advertising by children aged 6-11. Ms Jowell said OFCOM was a regulator that would encourage effective self-regulation. Indeed, it was recognised that in the future context of increasing convergence, "it may be" that a self-regulatory system could better deliver "consistent, comprehensible regulation across the media". She particularly referred to the ASA/CAP system as a respected example that worked well. This was why, she said, the government had "strengthened the self-regulation provisions in the Communications Bill" but she cautioned that although for government this was "the easy option", OFCOM's role would be to make absolutely sure that any such system was effective.
In the light of this, it is perhaps not surprising that much more was expected of the Communications Bill on its publication than it actually delivered. In sum, everything in this area is apparently still up for debate and for yet more hard lobbying on the part of industry and consumer bodies. By Summer 2003 we will hopefully have a clearer picture of whether, and if so how, the broadcast advertising regulatory landscape will change.
Why this matter:
Clearly the government is still largely undecided as to whether to change radically the current broadcast ad regulatory regime or to leave it pretty much untouched on the basis of "if it ain't broke…". Our own suspicion is that once we come out of the other end of this whole process, it is unlikely that the regime will be dramatically different. Given the enormous potential wasted expense of getting a TV commercial wrong from a regulatory point of view, there has to be a continuation of the current pre-broadcast vetting scheme in some shape or form, and although there will be a new OFCOM broadcast advertising code, we do not envisage it moving substantially from the current precedent set by the ITC's own equivalent code. However, there could be some radical, liberal changes in areas such as product placement and sponsorship/advertiser-funded programming and whatever happens, the next few months will be critical.