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Ofcom Consults on Important Changes to Its TV Advertising Rules




by:
Dentons Canada LLP - Toronto Office

 
July 30, 2014

Previously published on July 22, 2014

On 18 July, Ofcom published a consultation document proposing important changes to the TV advertising rules, including in particular as to the way in which programme length is measured for the purposes of determining the amount of permitted advertising. These changes are particularly relevant to broadcasters of children's programmes and reflect wider concerns that investment in such programming is falling and the advertising regime needs to be sensitive to such developments.

In addition, Ofcom is examining amendments to the definitions of certain core terms within its advertising rules together with a general reformulation of the structure of those rules.

Background

European law, specifically the Audiovisual Media Services Directive (AVMS), sets out minimum standards in relation to the content and scheduling of television advertising in the European Union. These standards include stipulations as to the duration and frequency of advertisements permitted to be broadcast, and depend on factors including genre and the type of channel. Ofcom, as the UK regulator responsible for the communications industries, implements these standards via the Code on the Scheduling of Television Advertising (COSTA). COSTA came into force in 2008 and since that date it has been subject to periodic reviews and consultations in relation to specific issues, for example the 2010 review of the rules relating to product placement.

Measurement of programme length

In accordance with AVMS, COSTA mandates that a children’s programme may only include an internal commercial break during the programme if its length exceeds 30 minutes. Currently, this period of 30 minutes is measured by reference to the programme’s EPG scheduled duration.

Certain children’s television providers have argued that, as EPG slots are measured in five-minute increments, the practical impact of an EPG-based calculation is that internal breaks cannot be used unless the programme is scheduled to run for 35 minutes. The Consultation considers possible changes to the measurement of programme length. Three alternative approaches are discussed, each of which would focus on a calculation based on a channel’s transmission logs, which provide more precise detail than the EPG schedule. These possible alternatives are:

  • measurement from the start of one programme to the start of the next;
  • measurement of the time between the start and finish of a programme (i.e. including internal advertising breaks); and
  • the duration of editorial material alone (i.e. excluding internal advertising breaks).

The Consultation does not express a firm view as to which of these alternatives should be employed. Instead Ofcom sets out what it considers to be the advantages and disadvantages of each one and seeks further input from industry.

Other proposed changes

Definitions

The Consultation also sets out a number of other proposed changes to COSTA. Ofcom is seeking to clarify the definition of certain terms used in COSTA in order to ensure that they accurately reflect the intention of the underlying European legislative requirements. The changes will include revised definitions for a number of terms, including (by way of example):

  • television advertising, which is being clarified to make it clear that announcements by broadcasters relating to their own content (as opposed to general commercial advertisements) are included in the definition, save in respect of the exemption at Article 23(2) of AVMS, under which broadcasters are  not required to include the time taken to broadcast announcements in connection with their own programmes when calculating the hourly amount of television advertising that they transmit;
  • television films, which will be redrafted to make it clear that all "cinematographic works" are covered by the definition - whether they take the form of films, series, serials, documentaries or otherwise; and
  • teleshopping, to clarify the distinction between teleshopping and advertising for the purpose of scheduling teleshopping windows.

Full details of the proposed changes can be found in the consultation document.

Break restrictions for films on Public Service Broadcasters (PSBs)

PSBs are restricted by COSTA from running breaks during programmes exceeding 3 minutes 50 seconds. Non-public service channels are not subject to this particular restriction (although they are subject to restrictions on the average hourly amount of advertising broadcast and on the number of internal breaks included).

In December 2010, Ofcom broadened the definition of "films" under COSTA to include "single dramas", and as a consequence of this change, the number of internal advertising breaks permitted for "single dramas" was reduced. To reduce the impact of this change on PSBs, Ofcom began a trial waiver of the restriction to 3 minutes and 50 seconds on internal breaks in relation to films transmitted on PSB channels.

Ofcom has concluded that there have been no adverse effects from the trial and therefore intends to formalise the waiver in the revised COSTA rules.

Deadlines

Responses to the Consultation must be submitted to Ofcom by 10 October 2014.

Ofcom intends to publish a statement on the Consultation in early 2015.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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