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Covert Advertising -the notion and regulation
in the UK
Joanna Wrona
2
Covert advertising – the notion
Continental law :Covert advertising – type of unfair advertising
– “la publicité clandestine”, “la publicité cachée, “Getarnte Werbung”
Covert advertising - a statement encouraging the purchase of goods and services, that gives the impression of neutral information, thus misleading consumers as to its character
English law: No legal control over unfair advertising - lack of definition and
general ban on covert advertising
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The notion of covert advertising in the UK
English law and soft law:
Advertisements not recognizable as suchAdvertisements not identifiable as such
– the equivalent to covert advertisements
Advertisement not recognizable as such:an advertisement (within the meaning of the relevant regulation) that influences consumers’ economic choices, without them being aware of it and thus misleading consumers as to its character.
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The notion of covert advertising in the UK
Advertisements not recognizable as such mislead consumers – type of misleading advertising
The approach confirmed by: Council minutes of the adoption of the Directive on
Misleading Advertising ASA adjudications OFT interpretation
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Regulation of covert advertising in the UK
Self-regulation: – The British Code of Advertising, Sales Promotions and
Direct Marketing Co-regulation:
– BCAP Radio Advertising Standards Code– BCAP TV Advertising Standards Code– BCAP Rules on the Scheduling of Television
Advertisements
All advertisements should be legal, decent, honest and truthful
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Regulation of covert advertising in the UK
Statutory law regulates the areas harmonized at EU level:– The Communications Act 2003 – the Ofcom
Broadcasting Code – The Electronic Commerce Regulations 2002– The Control of Misleading Advertisements
Regulations 1988
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Enforcement
Broadcast advertising - Ofcom
Content of broadcast advertisements – Co-regulation: ASA + Ofcom
Non-broadcast advertising - Self-regulatory bodies: CAP and ASA
On-line advertising – ASA + OFT
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Different types of covert advertising
Hidden advertisements: - Direct marketing- Cinema- Mobile phone messages
Rule 22.1 BCASP&DM: marketers, publishers and owners of other media should ensure that marketing communications are designed and presented in such a way that is clear that they are marketing communications
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Advertorials (Advertisement features)
Rule 23.1 of BCASP&DM: Advertisement features, announcements or promotions(…)that are disseminated in exchange for a payment or other reciprocal arrangement should comply with the Code if their content is controlled by the marketers rather than publishers.
Rule 23.2.: Marketers and publishers should make clear that advertisements features are advertisements(…)
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Covert advertising in Internet
Requirement of clear identification of: on-line commercial communications (banners, pop-ups):
reg. 7 of E-Commerce Regulations 2002rule.22.1 BCASP&DM
unsolicited e-mail commercial communicationsreg. 8 of E-Commerce Regulations 2002rule 22.1: Unsolicited e-mail marketing communications should be clearly identifiable as marketing communications without need to open them.
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Covert advertising in radio and TV
The principle of clear separation of advertising and editorial material
- the presence of artists/actors in advertisements adjacent to the programme in which they appear (rule 4.2.7 -BCAP Rules on the Scheduling of TV Advertisements)
- the appearance of radio/TV presenters in advertisements broadcasted on the same station/channel (rule 2.1.2 BCAP TV Code & s.2 r. 24BCAP Radio Code)
- resemblance of advertisements to news studio, news style etc. (s.2 r. 1 BCAP Radio and r. 2.1.2TV Code)
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Covert advertising in radio and TV
Prohibition of :- undue prominence - product placement
(Sec. 10 Ofcom Broadcasting Code)
Debate on the liberalization of rules on product placement (both in the UK and EU)
Subliminal advertising – Banned by rule 2.12 Ofcom Broadcasting Code & rule 5.4.5 BCAP
TV Code)
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Conclusions:
Very important role of self-regulatory bodies in the control of covert advertising
Soft enforcement measures Much less effective enforcement in the field
of broadcast advertising than non-broadcast advertising
No action taken in the field of product placement and subliminal advertising