How To Allow Product Placement On Tv In The Uk

Transcription

1 Product Placement A Guide to the New Rules February 2011 Olswang LLP

2 Product Placement A Guide to the New Rules The relaxation of the rules on product placement has been much talked about in recent months. Product placement is already permitted on on-demand services following the implementation of the AVMS Directive in early 2010 and, from 28 February, UK licensed broadcasters will be able to broadcast product placement contained in UK programmes for the first time. OFCOM has consulted on the scope of the liberalisation for scheduled television services and recently issued both a revised version of the OFCOM Broadcast Code ("OFCOM Code") and also details of the signalling required to ensure that viewers are made aware of product placement in the shows they watch. Whilst there has been some discussion about the extent of the liberalisation, for example, thematic placement continues to be prohibited, there is no doubt that this is a step forward. This guide summarises the rules on product placement that apply to both scheduled and on-demand television services and sets out the changes made to the OFCOM Code. Introduction Legislative background Prior to the introduction of the suite of regulations required to implement the Audiovisual Media Services Directive (collectively the "AVMS Regulations"), product placement in programmes was expressly prohibited on scheduled television services but on on-demand services it was not regulated in the UK at all. The AVMS Regulations essentially incorporate into domestic law the provisions of the Audiovisual Media Services Directive ("AVMS Directive") which (amongst other things) provided for regulation of product placement on a consistent basis across both scheduled and on-demand services. See HUhttp:// for an overview of these Regulations. Whilst the introduction of the AVMS regulations was sufficient to change the position for on-demand services, in order for any changes to be made to the rules applicable to OFCOM licensed services, OFCOM was required to consult with stakeholders. It has since done so and the results of this consultation were published on 20 December 2010 along with a revised Section 9 of the OFCOM Code which comes into force on 28 February Olswang LLP

3 What constitutes product placement in the UK? "Product placement" is defined as the inclusion of, or of a reference to, a product, service or trade mark in a programme, where the inclusion is for a commercial purpose and in return for payment or other valuable consideration to the applicable broadcaster or on-demand service provider or the producer of the programme (or any person connected to them). "Prop placement" (i.e. where props are provided free of charge for inclusion in programmes) is excluded from this definition, provided that the broadcaster or on-demand service provider or the producer of the programme does not receive payment for including the prop nor any significant residual value. For example, if an expensive car is provided for use in a programme free of charge then this will constitute prop placement provided that the producer is not allowed to keep the car after production has ended. Who is bound by the rules on product placement? It is the broadcaster (in relation to scheduled television services) or the on-demand service provider (in relation to on-demand services) that is bound by the applicable rules. However a producer would obviously not want to make a programme that contravenes the rules and therefore can not be broadcast or made available on a scheduled television channel or an on-demand service in the UK. And, of course, broadcasters and on-demand service providers will generally seek warranties from producers as to a programme's compliance with the OFCOM Code. Product Placement on Scheduled Television Services What types of programmes are affected by the legislation? Product placement is only permitted in movies, films or series made for television, sports programmes and light entertainment programmes. The revised OFCOM Code clarifies that single dramas and single documentaries fall within the permitted genre of "films made for television" and may therefore contain product placement. Product placement in children's programmes (i.e. programmes made primarily for viewing by under-16s) and in religious, current affairs and consumer affairs programmes remains expressly prohibited. The revised OFCOM Code also makes it clear that product placement is prohibited in news content. However, OFCOM's consultation proposal that the prohibition should be extended to certain specialist factual content has not been adopted in the final form of the revised OFCOM Code. What are the general rules on product placement? Certain products cannot be the subject of product placement in UK made programmes, such as foods that are high in fat, salt or sugar, gambling services, prescription only medicines and other medicinal products and cigarettes. Placement of alcoholic drinks is permitted provided that it is not aimed at under-18s and does not encourage immoderate consumption. The revised OFCOM Code also prohibits the product placement of any product, service or trade mark that can not be advertised on television under the BCAP Code. Olswang LLP

4 Product placement arrangements must not influence the content or scheduling of a programme in a way that affects the editorial independence of the broadcaster. The revised OFCOM Code makes specific provision for this rule and clarifies that there must always be sufficient editorial justification for the inclusion of product placement in programmes in particular, editorial content must not be created or distorted so as to become a vehicle for product placement. These provisions are designed to prohibit thematic placement, however, OFCOM does not consider that these rules necessarily preclude all circumstances in which product placement arrangements are entered into before or alongside the creation of scripts, storylines or programme themes. The revised OFCOM Code clarifies that the revised rules apply to paid-for references to products, services or trade marks that are included in a programme for a non-commercial purpose (for example, where a charity pays for the inclusion in a programme of a reference to its name or trade mark). Also: product placement must not directly encourage the purchase or rental of goods or services; the programme can not give undue prominence to the products, services or trade marks which are the subject of the product placement; and techniques which exploit the possibility of conveying a message subliminally or surreptitiously must not be used. The way in which the product, service or trade mark is included must also comply with some over-arching principles including that it must not prejudice respect for human dignity, promote discrimination, encourage behaviour prejudicial to health or safety or the environment, cause physical or moral detriment to under- 18s or unreasonably show under-18s in dangerous situations. What are the requirements for identifying product placement in programmes? If a programme has been produced by or commissioned by the broadcaster of the service on which it is included (or a person connected with them) then the fact that the programme contains product placement must be signalled to viewers no less frequently than at the start and end of the programme and after each internal advertising break. As a result of the consultation responses, the revised OFCOM Code requires that signalling must be by means of a universal neutral logo pictured below. Note that there are two versions so that the logo can appear on a light or dark background. OFCOM Olswang LLP

5 The logo must appear at the beginning and end of programmes in which product placement appears and when a programme recommences after advertising breaks. The criteria for the logo will be included in an Annex to the initial guidance which OFCOM has published and will include the following: the logo must be placed within the 4:3 safe area, but may appear in any corner of the screen, provided it does not conflict with other graphics; minimum logo size, brightness and transparency; the logo must appear at the required points in the programme for a duration of no less than three seconds. In order to reinforce the signalling requirement, OFCOM has confirmed that it will be issuing a formal request to broadcasters to conduct an audience awareness campaign or message about the universal visual logo. This request will apply to broadcasters who transmit signalled programmes within the first six months from 28 February The requirements for signalling product placement are placed on the broadcaster. However, the broadcaster may contractually require producers to comply with the broadcaster's own obligations in respect of visual identification and in any event will need to be provided with the relevant information from the producers to enable it to comply. Acquired content Prior to the AVMS Regulations, the prohibition on product placement did not apply to imported programmes or movies. Under the new regime, UK and non-uk produced content are subject to broadly the same product placement rules, subject to the following exceptions: there are less restrictions on the products that can be placed in imported content (the only restrictions are on cigarettes and other tobacco products and prescription-only medicines); and the signalling requirements only apply to programmes that have been produced by or commissioned by the broadcaster (or a person connected with them). Other changes under the OFCOM Code Note that in addition to the new rules mentioned above, the revised OFCOM Code contains certain incidental changes to the rules on sponsorship including: permitting sponsors to place products in programmes they are sponsoring (subject to the rules on product placement); and permitting sponsorship credits during programmes, provided that where a sponsor is prohibited from placing its products in the programme it is sponsoring, sponsorship credits may not be shown during the sponsored programme. From January 2012, OFCOM is planning to request data (in respect of the 2011 calendar year) on net revenue that licensed broadcasters and the producers they commission have generated as a result of product placement deals. Olswang LLP

6 Product Placement on On-Demand Services The regulatory body for on-demand services is ATVOD (the Association for Television Video On Demand), which on 15 September 2010 published a separate set of rules applicable to content made available solely on on-demand services ("ATVOD Rules"). However, note that the guidance applicable to these rules is subject to review following revision of the OFCOM Code. The rules applicable to product placement on on-demand services are broadly similar to those detailed above for scheduled television although they are less stringent in the some respects. For example: Unlike the OFCOM Code, the ATVOD Rules do not contain a prohibition on the product placement of foods high in fat, salt or sugar or gambling services. However, the ATVOD Rules do prohibit product placement of cigarettes and prescription only medicines, and they provide that product placement of alcoholic drinks must not be aimed specifically at under-18s nor encourage immoderate consumption. As with scheduled television programmes, where an on-demand programme has been produced or commissioned by the provider of the service or any connected person, the on-demand programme service must signal the fact the programme contains product placement no less than at the start and end of the programme and after any advertising breaks. However, at present the guidance to the ATVOD Rules suggests that signalling may be by way of a logo or script appearing on the screen, or by a spoken announcement, rather than just by way of a prescribed logo. As the ATVOD Rules are subject to review following the new Section 9 of the OFCOM Code, it may be that this guidance is amended to reflect the signalling requirements for scheduled television. Note that, although the rules for on-demand services may be less stringent, "on-demand services" are defined in such a way that the majority of the content included on those services is likely to be content that has been or may in the future be broadcast on scheduled television and so it is likely that producers will comply with the more stringent rules in most circumstances in any event. Olswang LLP

7 Key Contacts John Enser Partner +44 (0) Victoria Gaskell Senior Associate +44 (0) Rachael Hammond Associate +44 (0) Olswang LLP

8 Berlin Brussels London Madrid Thames Valley +49 (0) (0) (0)