Double meanings in broadcast sponsorship credits are a tried and trusted technique for communicating a sponsorship link while also alluding to the sponsor’s product. How did car manufacturer Jaguar over-step the mark? Nick Johnson reports.
Topic: Sponsorship
Who: Jaguar, Ofcom, BSkyB
When: November 2011
Where: London
Law stated as at: 7 December 2011
What happened:
Jaguar's sponsorship credits around Sky Sports' July 2011 coverage of international cricket were held to be in breach of the Ofcom Broadcasting Code, as they were held to make a claim about specific attributes of the sponsor's product, capable of objective substantiation.
The credits showed a Jaguar car driving on a very wet road, with a voice-over from cricket commentator David Lloyd stating:
"Well, that bit of rain hasn't changed the performance at all."
Following a complaint about the promotional nature of the credit's message, Ofcom considered the material under Rule 9.2
(a) of the Code. This requires that:
“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 trade marks for the sole purpose of helping to identify the sponsor and/or the sponsorship arrangement.”
The broadcaster Sky argued that the dominant purpose of the credit was to link Jaguar with the programme and make the sponsorship relationship clear. It pointed to the use of David Lloyd for the voiceover, the fact that cricket is regularly delayed by rain and the fact that commentators would typically comment on the effect of a break for rain on players' and teams' performances.
Sky also cited June 2009 Ofcom guidance, in which Ofcom noted the possible use in sponsor credits of statements with "…double meanings which communicate something about the sponsored programme or the sponsorship arrangement, but that also allude to the sponsor or its products or services". The broadcaster also argued that the reference to "performance" was non-specific and amounted to no more than "mere puffery".
Ofcom was not swayed by Sky's arguments. It concluded viewers were likely to understand the reference to "performance" as a specific reference to handling performance in wet driving conditions. As such it held the credits contained an "advertising message" contrary to the requirements of Rule 9.22(a).
Why this matters:
Under the Audio-Visual Media Services Directive, EU member states are obliged to limit the amount of advertising that broadcasters transmit each hour, and to ensure advertising is kept separate from other parts of the programme service. Because sponsorship credits are treated as separate from advertising and do not count towards advertising minutage, broadcasters are required to ensure that credits do not contain advertising messages.
Sponsors of course want to get maximum return on investment from their broadcast sponsorships. So inevitably there is often pressure to try and use the sponsorship credit to do more than just promote the brand and communicate the sponsorship.
Ofcom's adjudication here makes it clear that a "double meaning" within a credit will only be acceptable if neither meaning would be understood by viewers as amounting to an advertising claim.
