0800 Reverse is a reverse charge service that allows calls to be made to landlines. It sponsored a programme strand on kids channel Nickelodeon. Ofcom got complaints that sponsorship credits were silent on the call charges payable by the call recipient. Omar Bucchioni reverses charges.
Topic: Sponsorship
Who: Ofcom, Nickelodeon and 0800 Reverse
When: 12 April 2010
Where: UK
Law stated as at: 20 April 2010
What happened:
The broadcast regulator Ofcom has recently investigated sponsorship credits used by reverse charge telephone service provider 0800 Reverse to promote its sponsorship of the Nickelodeon children's channel TEENick programme stream, aimed primarily at girls aged nine to twelve.
The credits contained the words OUT OF CREDIT!, a mobile phone and a collage effect of different images, ending with the words 0800 REVERSE STAY CONNECTED TO HOME.
The voiceover said No credit? No problem!…TEENick sponsored by 0800 Reverse.
Three viewers complained, pointing out that the 0800 Reverse service is expensive for the call recipient, but despite this, no call costs were indicated in the credits. In the complainants' view the cost might not be appreciated by teenagers and younger viewers and the sponsorship was therefore unsuitable.
How 0800 Reverse works
0800 Reverse is a reverse charge service that allows telephone calls to be made to landlines. Although the service is free to the caller and uses a freephone prefix (0800), charges are applied to the account of the person accepting the call.
0800 Reverses website indicates that, for example, a call under 30 seconds long from a non-contract mobile to a BT landline will cost the recipient £3.99. Every additional 30 seconds or fraction of a 30 second period will cost an additional 60p. For more info see: http://www.0800reverse.co.uk/terms-and-conditions.aspx
Nickelodeon response
Nickelodeon considered 0800 Reverse appropriate as a sponsor of TEENick because the service is aimed at allowing children to make contact with parents even if they have no credit, therefore invaluable for children who need to contact home and could provide peace of mind for parents and guardians.
Nickelodeon said that the sponsorship credits were not misleading: the 0800 prefix indicates that the call is free to the person dialling. The person receiving the call is told the name of the caller, asked whether they wish to accept the call and told that a charge will apply. No call can be connected without the recipient's permission.
Nickelodeon took a "damned if you do" line. They said that in light of recent scrutiny of sponsorship credits by Ofcom, which required that sponsorship credits do not contain advertising messages, the channel had minimised the amount of product information so as to avoid the credits adopting advertising-like qualities.
Nickelodeon referred to the guidance notes to Section Nine of the Broadcasting Code, which states in relation to the content of sponsorship credits, that …pricing information included in a sponsorship bumper will normally be considered to be an advertising message.
Ofcom decision
Ofcom acknowledged that Nickelodeon had omitted price information from the sponsorship credits in good faith, to ensure that they remained distinct from advertising, and were therefore compliant with Rule 9.13 of the Code. However, the guidance goes on to state the following:
"Mandatory price information (such as the cost of premium rate services) is acceptable provided it does not form part of an advertising message. Any price information that is not mandatory will normally be considered an advertising message".
Ofcom said that "mandatory" in this context means either that a pricing disclosure is required by statutory provision or through a recognised code of practice (e.g. ASA decisions). Such mandatory price information is permitted in sponsorship credits to ensure viewers are adequately protected from potential harm, and to ensure compliance with relevant advertising regulations.
To ensure compliance with Rule 9.13 of the Code, such pricing information must not form part of an advertising message (for example, the pricing information could not be described in a promotional way, e.g. "only 1p a call").
The Advertising Standards Authority (ASA) has twice considered misleading TV adverts for 0800 Reverse in which costs of calls to recipients, though mentioned in text, were not sufficiently legible. These decisions demonstrated, Ofcom said that price disclosures should have been treated as necessary in the sponsorship credits.
Since the omission of the pricing information could potentially mislead viewers about the service (i.e. that it involves a significant cost to the recipient which should have been made clear), Ofcom found the sponsorship credits in breach of Rules 5.1.1 and 5.1.2 of the BCAP Television Advertising Code.
In addition, since the omission of the pricing information could potentially mislead young viewers (the intended audience was nine to twelve years old) that the service may be free, Ofcom found the sponsorship credits in breach of Rule 7.1.1 of the BCAP Television Advertising Code. The sponsorship credits were also held in breach of Rule 9.3 of the Broadcasting Code.
Why this matters:
This verdict seems a little harsh and Nickelodeon's "damned if you do, damned if you don't" defence has some merit.
The channel had followed clear guidelines laid down by Ofcom for sponsorship credits and could be forgiven for understanding "mandatory" to mean "expressly required by law."
To extend the meaning of "mandatory" so as to also cover information required on the basis of previous ASA decisions would seem to place an unfair burden on advertisers and media owners. Previous ASA decisions on similar facts will now need to be trawled through to determine what disclosures are "mandatory" and therefore have to feature in sponsorship credits.
This seems to be moving dangerously close to a "case law"-type system based on precedent and looks to be yet another step closer to an over-legalistic rather than co-regulatory approach to broadcast ad regulation.
For more information see the Ofcom Bulletin of 12/04/2010: http://www.ofcom.org.uk/tv/obb/prog_cb/obb155/
Dr. Omar Bucchioni
Paralegal
Osborne Clarke, London
omar.bucchioni@osborneclarke.com
