1. 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

3. 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.

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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(…)

10. 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 commercial communications
reg. 8 of E-Commerce Regulations 2002
rule 22.1: Unsolicited marketing communications should be clearly identifiable as marketing communications without need to open them.

11. 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 BCAP Rules on the Scheduling of TV Advertisements)
- the appearance of radio/TV presenters in advertisements broadcasted on the same station/channel (rule 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 TV Code)

12. 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 BCAP TV Code)

13. 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

14. Thank you for your attention!
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