Ofcom has published its changes to the Broadcasting Code, resulting in the regulation of phone-in programmes using premium rate telephone services being moved to the BCAP Television Advertising Standards Code. What impact will this have on advertisers and broadcasters and will anyone be able to understand which set of rules applies? Zoe Hare explains.
Topic: Telecoms
Who: Ofcom
When: November 2009
Where: UK
Law stated as at: 18 December 2009
What happened:
On 3 November 2009, Ofcom published its regulatory statement and consultation paper on the treatment of the promotion of Premium Rate Services ("PRS"). This document set out the changes to the Broadcasting Code rules on PRS and opened a further consultation on proposed changes to the relevant Advertising Codes.
These developments are particularly relevant to TV programmes with phone-in competitions and voting.
The consultation, which closes on 15 January 2010, follows previous Ofcom consultations in 2007 and 2008 on the regulation of Participation Television ("PTV"). The previous consultations proposed making a marked distinction in Ofcom's Broadcasting Code between editorial content on the one hand and content considered to be advertising and promoting PRS, which would fall under the stricter regulation of the BCAP Television Advertising Standards Code ("Advertising Code").
The most recent consultation details changes to the Broadcasting Code in order to clarify that the promotion of certain content based on PRS will no longer be permissible as editorial content under the Broadcasting Code. PRS may only be included in editorial television and radio programmes where the PRS services are specifically related to the main editorial purpose of the show. PTV channels, such as adult chat and psychic channels, are likely to be considerably affected by the revised rules.
Ofcom confirmed in the consultation paper that the rules apply to radio in the same way as to television. Ofcom states:
"the general principle that requires advertising to be distinguished and regulated as such applies to radio as well as to television. We have therefore concluded that the new rules on the promotion of PRS should be applicable to radio as to television."
Where the line between editorial content and advertising/promotion is crossed, i.e. where PRS services are promoted more extensively than is permissible under the revised Broadcasting Code, then the material is considered as "advertising" and thus falls within the Advertising Code.
Following stakeholders' comments, the explicit wording of the amendments to the Broadcasting Code and its accompanying guidance was revised.
Why this matters:
Ofcom asserts that the amendments to its Broadcasting Code will be of benefit to viewers, consumers and broadcasters. The consultation paper states that:
(a) "For viewers, it will maintain the distinction between editorial and advertising, and ensure that programmes must not be vehicles for the promotion of PRS services.
(b) For consumers, it will ensure that services predominantly advertising PRS will be regulated under the Advertising Code which offers enhanced protection for consumers against misleading content and unfair trading practices.
(c) For broadcasters in general, it will provide increased clarity on what comprises acceptable use and promotion of PRS in editorial content. In doing so, this will create consistency and fair competition for broadcasters and PRS providers wishing to promote PRS services on television."
Any advertiser and broadcaster must now pay careful attention to the new rules in order to ensure compliance. They must be aware that material which previously fell within the Broadcasting Code may not be subject to the more restrictive rules of the Advertising Code. Therefore, it is not as straight forward as it once was to promote PRS in radio and television.
The new rules can be found in Section 4, and guidance found in Annex 6. These rules will come into effect in early 2010.
The full consultation document can be found at the following webpage:
http://www.ofcom.org.uk/consult/condocs/participationtv3/ptv3.pdf
