Covert Advertising the notion and regulation in the UK

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Covert Advertising -the notion and regulationin
the UK

• Joanna Wrona

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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

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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.

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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

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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

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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

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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

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Different types of covert advertising

• Hidden advertisements
• Direct marketing
• Cinema
• Mobile phone messages
• Rule 22.1 BCASPDM 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

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Advertorials (Advertisement features)

• Rule 23.1 of BCASPDM 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()

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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 BCASPDM
• 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.

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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)

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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)

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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

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Thank you for your attention!

• Contact details
• jwrona_at_uokik.gov.pl