Did sponsor credits on 5’s “Cowboy Builders” breach rules?

Topic: Sponsorship

Who: Ofcom

Where: England

When: 10 September 2012

Law stated as at: 8 October 2012

What happened:

The sponsorship credits for Channel 5's Cowboy Builders show sponsored by Checkatrade.com have been found in breach of the Rule 9.22(a) of the Ofcom's Broadcasting Code (the "Code").

The adjudication, published in Ofcom's Broadcast Bulletin on 10 September 2012, sets out the grounds for the complaint and Channel 5, as the licensee, provided a robust response to Ofcom for its reasons why it felt the sponsorship credit was in line with the Code and guidance issued by Ofcom.

Checkatrade.com is a website providing a directory of tradesmen that is combined with recommendations from customer feedback as well monitoring and verifying the insurance, qualifications and professional memberships of its member tradesmen.

The complaint alerted Ofcom to the sponsorship credit which included stylised text spelling out the name of the sponsor accompanied by 'sponsored by' and 'where reputation matters' text. The credit was also accompanied by a voiceover stating 'recommended trades and services that are vetted and monitored' and it was this voiceover that Ofcom considered warranted investigation under Rule 9.22(a).

The Code and Ofcom Guidance

Rules 9.15 to 9.25 of the Code deal with Sponsorship and in particular Rule 9.22(a) states (emphasis added):

"Sponsorship credits broadcast around sponsored programmes must not contain advertising messages or calls to action. Credits must not encourage the purchase or rental of the products or services of the sponsor or a third party. The focus of the credit must be the sponsorship arrangement itself. Such credits may include explicit reference to the sponsor's products, services or trademarks for the sole purpose of helping to identify the sponsor and/or the sponsorship arrangement."

To supplement the Code Ofcom has also published extensive guidance notes designed to assist TV broadcasters in interpreting and applying the Code. Amongst the guidance are a few pieces of guidance in relation to what would be considered an advertising message which were addressed in Channel 5's response:

• credits that focus predominantly on the sponsorship arrangements, rather than the sponsor or its products/services, are more likely to be compliant with the Code
• Creative approaches that thematically link the sponsor to the programme by genre or character are more likely to highlight the distinction between sponsorship and advertising
• The use of the sponsor's slogans, straplines or jingles are only allowable where they help to identify the sponsor / sponsorship arrangement and do not encourage purchase/use of the sponsors products/services
• Claims about the sponsor's products/services, in particular those that are capable of objective substantiation, are likely to be considered advertising messages
• The use of promotional language and/or superlatives to describe the product/service is likely to be considered advertising
• Credits that contain direct invitations to the audience to contact the sponsor are likely to be considered a call to action and therefore prohibited, although minimal contact details are acceptable

Channel 5's Response

Channel 5, who have a comprehensive guidance section on their website in relation to the rules relating to sponsorship credits, were strong in their response that they did not believe the Checkatrade.com sponsorship credits to have been in breach of Rule 9.22(a) including for the following main reasons:

• That the description of the services provided by Checkatrade.com in the voiceover was only included in two of the six credits and therefore Channel 5 considered that viewed as a whole that the inclusion of the service description did not impinge on the primary focus of the sponsorship being the association between the sponsor and the programme.
• Checkatrade.com is a relatively unknown company and therefore without the nationwide awareness of the services that it provides Channel 5 felt that a description of the services helped to identify the relatively unknown sponsor where the web address alone would have been insufficient. It did not feel that this was a promotional message but an accurate and succinct description of what the sponsor does.
• Channel 5 did not consider the voiceover to be a promotional message nor that it was a direct encouragement to use the service. It went on to say that to have accurately described the checkatrade.com service without the use of positive connotations would have been very difficult.
• Whilst Channel 5 accepted that the words were capable of objective substantiation, it reiterated that it was an accurate description of the checkatrade.com service and contended that it would have been difficult to describe the service without the word being used being capable of objective substantiation; however it felt that this did not feel that they constituted an advertising message.

The Decision

Ofcom, acting on its statutory duty under the Communications Act 2003, upheld the complaint and did not agree with Channel 5's contentions that there had been no breach of Rule 9.22(a). As Ofcom considered that the checkatrade.com sponsorship credits in fact amounted to an advertising message this mean that Channel 5 were in breach of the EU Audiovisual Media Services (AVMS) Directive which limits the amount of advertising a broadcaster can transmit.

Ofcom noted that there was no verbal reference to the sponsorship arrangement as well as the 'sponsored by' text being less prominent than the sponsor's name and they therefore disagreed with Channel 5's statement that the description of the sponsors business was 'entirely secondary'.

Furthermore Ofcom did not accept that the use of the positive attributes 'recommended', 'vetted' and 'monitored' was necessary to accurately describe the service, although it did acknowledge that the fact that such attributes are capable of objective substantiation did not necessarily mean they would be an advertising message – providing that they are for identification and not promotional purposes. Ofcom did not consider that to be the case here.

Why this matters:

For both the sponsor and the broadcaster (licensee) it is important to ensure that the sponsorship messages included in a broadcast are compliant with the Code as well as with the UK Code of Broadcast Advertising (aka the BCAP Code).

It is also key that sponsors and their relevant marketing service agencies get the rules right as unlike TV spot advertising, sponsorship credits are not vetted in advance of broadcast by Clearcast.

There is a fine line to be drawn between an advertising message and a sponsorship credit, especially when the sponsor may not be a household name already and the products and services are not obviously self-explanatory. This adjudication has demonstrated that the description, as well as the prominence in relation to references to the sponsorship arrangement, are key determining factors in whether a credit will be considered advertising.

Key points to take away from this example are:

• ensure that there is equal or more prominence to the sponsorship arrangement over any description of the sponsor or its products/services, i.e. if there is a verbal description there should also be a verbal reference to the sponsorship arrangement
• if the description can be objectively substantiated this is not in itself a reason for concern, however extra care should be taken that the message is not promotional
• using terms with positive connotations should be used with care and where possible an alternative description should be used.