Who: French Broadcasting Authority (Conseil supérieur de l’Audiovisuel) and CNews
When: 20 July 2021
Law stated as at: 10 August 2021
As part of its powers to monitor audiovisual content, the Conseil supérieur de l’audiovisuel (CSA) may issue warnings and sanctions against publishers of audiovisual media (including linear and on-demand services), whose services allow the broadcast of surreptitious advertising.
On 20 July 2021, the CSA issued a warning against the French news channel CNews for promoting Disney+ platform services during a morning show on 24 February 2021.
What is considered surreptitious advertising by the CSA?
According to the CSA, advertising is said to be surreptitious when goods, services or brands are presented outside advertising screens for “advertising purposes”, that is, not to inform but to promote. Such a practice is prohibited by Article 9 of the French Decree No. 92-280 of 27 March 1992 applicable to both linear and on-demand service providers and whose purpose is to set out the general principles defining their obligations with respect to advertising, sponsorship and teleshopping.
Programmes are assessed on a case-by-case basis after their broadcast and the CSA may take action if one of them appears to be questionable with regard to the prohibition of surreptitious advertising. The CSA is not entitled to assess the conformity of a programme before its broadcast.
Any reference in programmes to goods, services or brands does not constitute per se surreptitious advertising. This qualification depends on how the product, service or brand is presented. For references in a programme to qualify as surreptitious advertising, the CSA does not have to prove that the promotion was carried out for remuneration or intentionally. The CSA takes into account a set of clues, such as: (i) the absence of plurality in the presentation of goods, services or brands at stake; (ii) the complacency shown towards a particular good, service or brand; (iii) the frequency of the quotation and/or display of a good, service or brand; (iv) the absence of any critical view; and (v) any other relevant criteria.
In the CNews case, during a morning show, the anchor presented the Disney+ platform’s new catalogue, while displaying the name and the logo of Disney+ brand. In addition, this new offer from Disney+ was mentioned and showed on several occasions. The CSA considered that this was a detailed and complacent presentation of both the catalogue and the price, features and access to the service.
Under what conditions programmes featuring product placement are allowed?
Product placement – defined by the CSA as “any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, service or brand by inserting it in a programme, in return for payment or for similar consideration” – is excluded for news and information programmes, consumer programmes, religious programmes and children’s programmes.
It follows from Article 14-1 of the French Broadcasting Act dated 1986 that programmes containing product placement are subject to the following conditions:
(i) Their content as well as their scheduling by linear services or their organisation in a catalogue of on-demand services must in no case be influenced in such a way as to affect the responsibility and editorial independence of the provider of such services.
(ii) They shall not directly encourage the purchase or rental of products or services of a third party and shall not, in particular, contain specific promotional references to such products or services.
(iii) They do not unjustifiably promote the product or service in question.
(iv) Viewers are clearly informed of the existence of product placement. To this end, programmes containing product placement shall be appropriately identified as such at the beginning and end of their broadcast, as well as the moment when a programme is resumed after an advertising break, in order to avoid any confusion on the part of the viewer.
Additional guidelines from the CSA apply to programmes broadcast on TV, such as Deliberation No. 2010-4 of 16 February 2010 on product placement in television programmes. To date, there is no equivalent provisions for on-demand services.
Why this matters:
Non-compliance with the prohibition of surreptitious advertising and the rules on product placement may lead the CSA to take action in a gradual manner by first, usually, issuing a warning notice against the renewal of this practice in the future before sending a formal notice requiring the service provider to “comply with the obligations imposed on them by the legislative and regulatory provisions“. This formal notice can be made public (“name and shame”). If the service provider fails to comply with the formal notice, the CSA is entitled to initiate proceedings, which may include a suspension of all or part of the programme(s) or a financial penalty (up to 3% of the last annual turnover excluding tax and up to 5% in case of repeated offence).
This reminder is also relevant as, recently, a draft decree was prepared in order to implement the Audiovisual Media Services Directive provisions in terms of product placement by providing notably that video-sharing platform providers shall also ensure that audiovisual commercial communications do not use surreptitious advertising. (See “Extension of advertising obligations to providers of video-sharing platforms“).