Broadcasting Act 1990
Sections 8 and 9 require the ITC, after consultation, to draw up (and from time to time review) a code governing standards and practice in television advertising and to see that licensees observe the provisions of the code. The Commission must consult the Secretary of State on the categories of advertisements to be excluded from licensed services. UK international obligations also have to be taken into account by the ITC, principally by applying rules in conformity with the EU Directive on Transfrontier Broadcasting. It is a condition of the licences issued by the ITC that broadcasters comply with the code and any directions the ITC may give. Under the 1990 Act, the ITC can impose financial penalties on and curtail or revoke the licence of any broadcaster in breach of its licence.
Code/Rules
In September 2002, after extensive consultation, the ITC published a revised Advertising Standards Code. Like its predecessor Code, this sets the standards for the content of television advertising. The underlying principles are that advertising should not be misleading, should not encourage or condone harmful behaviour (especially in relation to children) and should not cause deep or widespread offence. But the ITC will not intervene simply on grounds of taste unless the advertising contravenes prevailing community standards. The Code prohibits some categories of advertising but there must be sound reasons for forbidding the advertising on television of products or services which are legally available. In addition to general rules, the code refers to particular categories of advertising, including advertising to children, alcoholic drinks, financial services, medical products, and advertising by religious and charitable groups. The new Code is clearer and simpler. It incorporates more notes to aid interpretation and application of the rules.
The ITC Rules on the Amount and Scheduling of Advertising sets out the rules which the ITC requires its licensees to observe on the amount, distribution, separation and scheduling of advertising. ITV, Channel 4 and Channel 5 (the free-to-air terrestrial channels and their digital counterparts) are limited to an average of seven minutes of advertising per hour (eight in peaktime); cable, satellite and digital programme services (apart from the simulcast services of the free-to-air channels) are permitted nine minutes average. In both cases this is calculated by averaging out the amount of advertising over the whole transmission day. The reason for the discrepancies between the regimes for the free-to-air terrestrial channels and the others is that, for the first category, the ITC has a statutory duty regarding the quality of the programme service and has decided that a lower ratio of advertising to programmes is appropriate. The ITC has no similar powers regarding the second category and therefore applies no greater restrictions than those required by the EU Directive on Transfrontier Broadcasting. These rules also permit the broadcasting of Teleshopping, either in the form of dedicated teleshopping channels, or as teleshopping windows (up to three hours per day) on existing channels.
Advisory Committees
The ITC retains an Advertising Advisory Committee in which matters of principle concerning advertising regulation can be debated and passed in the form of policy recommendations to the Commission. There is strong representation of consumer interests on the committee as well as of the advertising and television industries. The chair of the committee is independent.
The ITC also retains a Medical Advisory Panel for advice on health and medical aspects of advertising. Its services are also available to broadcasters. Panel members are nominated by leading medical professional bodies.
Broadcasting Advertising Clearance Centre (BACC)
The ITC requires licensees to ensure that broadcast advertisements are not in breach of the ITC’s code and rules. This duty is performed by the BACC on behalf of the ITV companies, Channel 4, Channel 5, BSkyB and some other cable and satellite channels. Most of its pre-vetting work is carried out directly with advertising agencies at script stage. The BACC is based in the ITV Network Centre’s offices at 200 Gray’s Inn Road, London, WC1X 8HF (Tel. 020 7843 8265). Licensees who choose not to use BACC’s services must provide other effective means of pre-vetting the advertising they broadcast. The ITC does not offer a clearance service.
Complaints
Every complainant receives a personal reply. The Television Advertising Complaints report is published (free) fortnightly (and an archive is available on the website). It lists the full range of complaints received and gives details of the decisions reached on the substantive cases. Complaints are categorised as misleading, offensive, harmful or miscellaneous.
For many years, the ITC received around 3000 complaints about TV advertising. Over recent years, the figure has risen significantly. This trend, reflected in many other public bodies, appears to be in response to government policies encouraging public comment rather than greater concern about the content of TV advertising. In 2002, the ITC received 7830 complaints (a 4% increase over the 2001 figure of 7503). The number of advertisements about which complaints were upheld was 136 compared to 135 the previous year. There were 2213 complaints about misleading advertising, 3979 about offensive advertising, 1178 about possible harm, and 460 complaints on a variety of other issues.
Competition
The Broadcasting Act 1990 requires the ITC “to ensure fair and effective competition” in the provision of services and that “in the acceptance of advertisements for inclusion in a licensed service there must be no unreasonable discrimination either against or in favour of any particular advertiser”.
Competing broadcasters. After consultation on whether it was acceptable for television companies to refuse to accept advertising for competing television broadcasting services, the ITC notified its licensees that it would be likely to regard a refusal to accept advertising of a generic kind from competing broadcasters as “unreasonable discrimination”. However, it would not be unreasonable for ITC licensees to refuse advertisements which promote specific programmes at particular times on a competing service.
Advertising Sales Arrangements. At the beginning of 2001 the ITC brought its rules in line with the Competition Commission’s decision to allow a more competitive advertising sales market. This reflects the significant changes in the structure of commercial television and the advertising sales market. The key changes include the removal of the limit of 25 per cent of net advertising revenue (NAR) placed on sales organisations wishing to sell airtime for ITC licensees; the ability for national licensees with an NAR of 5 per cent or less to sell airtime jointly with each other or any other national licensee; national licensees with a market share equivalent to GMTV or less may jointly resell their airtime with either of the two main Channel 3 airtime sales houses; and small Channel 3 licensees (5 per cent UK NAR or less) may jointly sell their airtime with any national licensees.
Interactive Television Services
In 2001, following extensive consultation, the ITC published its Guidance to Broadcasters on Interactive Television Services. This contains safeguards for news and current affairs, consumer advice and children’s programmes. The ITC’s approach acknowledges the different expectations of viewers who make a positive choice in selecting options on their television screen but balances this with the need for clarity about when material is supporting a programme and when it is selling. The ITC insists that interactivity must not blur the fundamental principle of separation of programmes and advertising. The ITC distinguishes between dedicated interactive services such as shopping malls - where its regulatory role will be limited - and enhanced programme services where its role will include ensuring that the editorial integrity of the programmes is maintained.
International Obligations
The ITC is responsible for implementing the UK’s international obligations on television advertising under the EC Misleading Advertising Directive (84/450/EEC, amended in 1997 to include comparative advertising), the EU Directive on Transfrontier Broadcasting (Television Without Frontiers Directive, 97/36 EC) and the Council of Europe’s European Convention on Transfrontier Television. Because the EU Broadcasting Directive’s limits on minutage are less stringent than the ITC’s, it was originally implemented with little impact on ITV, Channel 4 and Channel 5. In July 1997 the ITC revised its Rules on the Amount and Scheduling of Advertising to reflect the provisions of the revised Broadcasting Directive. The changes enabled cable, satellite and new digital channels to carry additional teleshopping advertising and opened the way to the licensing of self-promotional channels.
ASA
The Advertising Standards Authority (ASA), which is funded by a levy on advertising space, investigates complaints on non-broadcast advertising and promotions including paid-for advertising on internet sites, but is not responsible for regulating TV advertising. It is a non-statutory self-regulatory body.
Further References
ITC Publications
· ITC Rules on the Amount and Scheduling of Advertising. 1998
· The ITC Advertising Standards Code. 2002
· Television Advertising Complaints report. Fortnightly
· ITC Notes 2-38 cover all aspects of the ITC’s functions and activities
· The Public’s View. ITC Research 2002
· A range of ITC audience research reports. (See website)
June 2003
|