Ofcom review of sponsorship credits provides useful guidance

Ofcom, the UK independent regulator of broadcast media, has published the findings of its review into compliance with the broadcast sponsorship rules. The review considered over sixty sponsorship campaigns across a wide range of commercial broadcasters. Broadcast sponsorship is the sponsoring of on-air programmes and channels that gives sponsors the opportunity to be associated with the content of a programme or channel. This is usually achieved by sponsorship credits, normally displayed at the beginning and end of a programme and at the beginning and end of each advert break.

Rule 9.13 of the Broadcasting Code (the “Code”), which is derived from the European Television Without Frontiers Directive (the “Directive”), 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 or rental of the products or services of the sponsor or a third party.”

The airtime of advertising in any given hour is strictly limited by the Directive. Sponsorship credits fall outside these airtime rules and broadcasters must therefore ensure sponsorship credits do not contain advertising messages.

The TWF Directive also requires that sponsorship “must not encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those products or services”, which is reflected in Rule 9.13 of the Code. Guidance issued by the European Commission stressed that reference to the products or services of the sponsor can only be made where the “sole purpose” of the reference is to make the link between the sponsor and the programme. Therefore, the Code allows references to products and services that identify the sponsor with the sponsored content, but not references which encourage the purchase or rental of those products.

In practice, it can be difficult to draw the line between what is a sponsorship credit and what is advertising. Sponsors have been keen to push the boundaries recently and this may have prompted Ofcom’s review. The Ofcom review has published the sponsorship credits which it found to be in breach of Rule 9.13.

Ofcom explained that whilst most of the cases it reviewed did feature some acceptable content that thematically linked the sponsors to the sponsored programme, the credits went too far as they also used promotional language to describe the sponsors products or services and/or encourage the purchase of those products or services, which amounted to advertising messages in breach of Rule 9.13. It has not yet published guidance to assist broadcasters to interpret the rules correctly in the future. However, it has stated that it will publish guidance soon. In the meantime, some of the reasoning provided by Ofcom in its decisions gives an insight in to what will be deemed to fall outside the Code in the future.

• Virgin Media’s sponsorship of Big Brother included the following statements: “get perks at the V festival” and “Ellie and Ruth use their Virgin mobiles to get perks at V Festival without having to flash a roadie like usual”. Despite the references not specifying what these ‘perks’ were or how viewers could go about obtaining them, they were deemed to be “special promotional references” as they highlighted the benefits of being a Virgin Mobile customer.
• PC World’s sponsorship of The Gadget Show included the following voiceovers: “Any TV big or small, it’s at PC World”, “A huge range of mp3 and mp4 players at PC World” and “Any game, any console, it’s at PC World”. It was argued that the voiceovers were used to provide a brief description of the sponsor’s business as this was relevant to explaining its association with the programme; the programme featured comment on products other than PCs. However, Ofcom considered that in this case the focus of the credits was on the products and the range available from the sponsor, which included image shots of the products, with the sponsoring arrangement appearing to be secondary.
• Carphone Warehouse’s sponsorship of the X Factor included animated characters in audition-based scenarios. Ofcom highlighted several instances where references to the products or services contravened Rule 9.13. For example, a character pulling a large laptop on to the stage, which then shrank, was accompanied with the voiceover, “Need a smaller laptop? Welcome to the Carphone Warehouse with a range of netbooks”, similarly a phone shown outside an animated Carphone Warehouse shop accompanied by voiceover “The Nokia 5310 comes with music – exclusively on pay-as-you-go. Welcome to the Carphone warehouse.” Ofcom stated that the brief references should not be used as a means for sponsors to promote the benefits of their products or services. In this case, specific statements were made and Ofcom considered that they promoted the positive attributes of the sponsor’s products and services and were therefore advertising messages.

If sponsors and broadcasters breach the Code, Ofcom has the power to impose significant fines, although none were imposed as a result of the review. Sponsors will always be keen to push the boundaries in order to promote their products and services most effectively, especially given the usual costs involved in sponsorship deals. However, it appears that Ofcom will now be monitoring sponsorship credits more closely and therefore sponsors and broadcasters alike should exercise caution. Ofcom is drawing a clear distinction between credits which merely identify the sponsorship arrangement and those which promote the products or services, or encourage purchase or rental of the sponsor’s products or services. Sponsors should therefore avoid making any claims about the product or services or giving any details of the price or where products or services may be bought, otherwise it is likely to be considered to be advertising. We will have to see whether the implementation of the AVMS Directive alters the rules on sponsorship and makes the division between advertising and sponsorship any clearer.