After monitoring over 60 TV sponsorship campaigns, broadcast regulator Ofcom recently held in one set of case reports that no less than nine campaigns broke its sponsorship credit rules. Nick Johnson focuses on the adjudications and Ofcom’s guidance.
Who: Ofcom, Virgin Media, NatWest, PC World, BT, Nestle Cereals, Carphone Warehouse, Benecol, Lipobind
Where: UK
When: March 2009
Law stated as at: 5 May 2009
What happened:
In its 23 March 2009 Broadcast Bulletin, Ofcom issued a slew of "upheld" adjudications against various broadcast sponsorships. It held that the sponsor credits for a number of programmes, including The X Factor and Big Brother, had overstepped the mark and fell the wrong side of the line between sponsorship and advertising.
The adjudications followed a monitoring exercise initiated by Ofcom, covering over 60 sponsorship campaigns. They did not result from consumer or trade complaints.
The Broadcast Code rules
Rule 9.13 of the Ofcom Broadcast Code states that:
"Sponsorship must be clearly separated from advertising. Sponsor credits must not contain advertising messages or calls to action. In particular, credits must not encourage the purchase of rental of the products or services of the sponsor or a third party."
One of the key rationales behind this distinction is that the Television Without Frontiers Directive (and now the Audio-Visual Media Services Directive) places limits on advertising minutage and requires that ads be kept separate from programming.
Under the Ofcom regime, sponsorship credits are treated differently from advertising and these restrictions do not therefore apply. To maintain that distinction, sponsorship credits are prohibited from containing advertising messages. The prohibition on encouraging the purchase or rental of products or services also reflects a specific requirement of the Directive in relation to broadcast sponsorships.
Note also that European Commission guidance on the relevant Directive provisions states that explicit references to products or services would be prohibited except where these serve "the sole purpose of identifying the sponsor or making explicit the link between the programme and the sponsor".
Where is the line drawn?
Ofcom highlights various factors that may be relevant in judging whether a sponsorship credit is sufficiently different from advertising. Essentially, a risk is likely to arise if:
- the credit's primary focus is on the sponsor's product or service or something else other than the sponsorship arrangement; or
- it includes more than a brief description of the sponsor's products; or
- it contains an invitation to contact the sponsor or purchase goods/services (although basic contact details, eg a website, are permissible).
Note however that Ofcom regards it as acceptable for one division or part of a business to sponsor programmes, and for the sponsor credit to reflect this.
Non-compliant
Ofcom held that, amongst others, the following were not permissible in the context of sponsorship credits:
- references to "perks at V Festival" as a promotional benefit of being a customer of the sponsor;
- reference to a sponsor's service being "fast and easy";
- promotional messages such as "We've got a broadband service to suit everyone" and "Any TV big or small, it's at PC World" and "At least you can control your cholesterol";
- references to positive outcomes of a Corporate Social Responsibility campaign such as "BT have been a proud financial supporter of Childline for over two decades. Doing our bit for a better world, come rain or shine" (in a sponsor credit against Five Weather); and
- on-pack product claims (eg "Proven to reduce cholesterol") where these are visible in pack shots included in the credit.
Market practice no defence
In its Bulletin, Ofcom also made a point of reminding broadcasters that it is no defence to show that similar material has been broadcast on other channels without regulatory intervention. Just because particular material was broadcast does not mean it was compliant.
Why this matters
Because broadcast sponsorship is a media buy much like broadcast advertising, and because complaints in this area to Ofcom have been reasonably thin on the ground, it has clearly been tempting for sponsors and their agencies to push the regulatory boundaries.
There has been something of a grey area between identifying the sponsor on the one hand (and doing so in a positive light) and advertising the sponsor and its products on the other. In seeking to maximise return on their sponsorship investment, it is perhaps natural that sponsors should have sought to exploit their associations with broadcast properties with promotional messages and, in some cases, calls to action. (The distinction between sponsor credits and advertising is of course peculiar to the broadcast environment: sponsorships of other kinds of property (sports, arts, press, online etc) are not subject to this restriction.)
However Ofcom has now drawn a clear, or at least clearer, line in the sand as to its interpretation of Rule 9.13, and has made it clear that it will enforce this Rule.
