Covert Advertising - the notion and regulation in the UK Joanna Wrona

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

The notion of covert advertising in the UK English law and soft law: Advertisements not recognizable as such Advertisements 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.

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

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

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

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

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

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(…)

Covert advertising in Internet Requirement of clear identification of: on-line commercial communications (banners, pop-ups): reg. 7 of E-Commerce Regulations 2002 rule.22.1 BCASP&DM unsolicited e-mail commercial communications reg. 8 of E-Commerce Regulations 2002 rule 22.1: Unsolicited e-mail marketing communications should be clearly identifiable as marketing communications without need to open them.

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)

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)

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

Thank you for your attention! Contact details: jwrona@uokik.gov.pl