No TV ad can indirectly publicise an unacceptable product or service by, for instance, leading viewers to promotional materials for those services on the web. We look at new ITC guidance on this.
Who: The Independent Television Commission
When: August 2003
In one of its last 'Television Advertising Complaints Reports' before it is gobbled up by OFCOM in December 2003, the Independent Television Commission, in a rare development, has included a 'Comment' on a particular issue that arises out of one of the cases reported.
The issue in question is indirect promotion of prohibited categories of advertising.
Because of its easy accessibility by children or other vulnerable audiences, or its potential influence or intrusiveness in the home, advertising for certain product and service categories is banned from UK TV. Rule 3.2 of the ITC's Advertising Standards Code is also designed to prevent advertising getting round this prohibition by leading viewers to promotional material for prohibited products in other media. An accompanying note states 'No advertisement is acceptable if a significant effect of it would be to publicise an unacceptable product or service by, for example, referring viewers to a website, publication etc where the product or service is promoted to a significant extent'
The ITC comment goes on to say that current policy on indirect promotion has required those who pre-vet advertising on behalf of the television companies (namely the Broadcast Advertising Clearance Centre ('BACC') which pre-vets all advertising before it goes on UK television) to make its own 'pragmatic' judgements about how 'significant' a particular piece of indirect promotion might be.
But there are still occasional problems with this, as the 'Deal4free.com' example reported August 2003 underlines.
In that case, it was advertising on the specialised financial TV channel Bloomberg which led to the problem. Advertising on that channel for Deal4free.com (a financial services company which operates only via its website) led viewers to its website. Amongst other things this offered visitors the chance to make a 'spread bet' as one of three options for services provided on other website pages. Spread betting cannot be advertised on UK TV.
Bloomberg defended on the basis that the website in question was not predominantly dedicated to spread betting and this service was not the most prominently promoted service on the page.
The ITC did not agree that this was the effect of the rule. The key was the 'significant effect test'. Reasonable judgements had to be made as to the point of at which any promotion for banned categories of advertising was no longer 'significant'. In this case, the ITC concluded, spread betting was strongly promoted on the web page to which viewers were first led, and rule 3.2 had therefore been breached.
Going back to its comment on the issue, the ITC accepts that particular difficulties can arise with websites since they can be easily changed during the run of a TV campaign. Sites can also be very large and have links to various other sections and to other websites entirely, but nevertheless the ITC expects television companies/ the BACC to make all reasonable checks and enquiries when applying this rule.
In other words, when applying the 'significant effect' test, the ITC will expect pre-vetting of advertising to include the investigation of the major categories of content on the advertised website itself and any link or route to that content or other sites which it seems reasonably likely that viewers would follow.
It is not necessary to pursue every conceivable path if it is unlikely that viewers would follow them. There will also be no criticism likely if circumstances change in ways which could not have reasonably been anticipated.
Nevertheless, 'reasonable judgements' must be made as to when the 'significant effect' test comes into play and advertising should be removed promptly when licensees are alerted by any means to the possibility that 3.2 is being breached.
Why this matters:
One comment on the form, the other on substance. As to form, it is interesting that towards the end of its long life, the ITC is on a rare occasion including its helpful comments and guidance in its Advertising Complaints Reports. It is to be hoped that the trend will continue under the new OFCOM regime, depending of course on whether, long term, OFCOM will take over this role from the ITC or become less 'hands on'.
As to substance, it is clearly a bit of a tall order for the Broadcast Advertising Clearance Centre or the networks to continuously monitor websites which TV advertising might refer to so as to ensure that the website does not, to any significant degree, promote unacceptable products or services. Having said this, the comment appears to indicate that it would be sufficient for a reasonably extensive enquiry to be conducted at the time of initial vetting and to act promptly to either a change on the website or the relevant advertising if circumstances change.