4H Editorial Independence : Products and Services within Programmes
In today's society, commercial brands, products and services are everywhere. Inevitably, therefore, this will be reflected within programmes and whilst there is no absolute prohibition on including verbal and visual references to commercial products and services within programmes, in order to maintain the editorial integrity of programming, the following rules apply.
Undue Prominence
Programmes must not give undue prominence to commercial products and services.
Clearly, commercial products and services can be referred to in programmes i.e. both visually and orally, but their inclusion and manner of inclusion should always be editorially justified.
The frequency and manner in which a product or service appears or is referred to in a particular programme will have a direct bearing on whether or not it is being given undue prominence.
A useful practical yardstick is that no impression be created of external commercial influence on the editorial process i.e. if viewers are left feeling a deal has been struck between the producers of a programme and an advertiser to promote a product or service by stealth or otherwise, this is very likely to amount to undue prominence of the product or service in question, regardless of whether or not such an arrangement exists (see also Product Placement below).
Generally, studio-sets should not contain ‘permanent' items that are branded e.g. branded items of furniture or props.
In studio-based programmes, branded products may be brought onto the set if editorially justified for a particular programme item e.g. a consumer item but, even then, verbal and visual references to the item should be kept to what is strictly editorially justified. For example, it will not normally be necessary to name-check repeatedly products under discussion and, if branded items are brought into the studio, thought should be given as to how they are shown on camera. They should not be placed in such a way that they are unduly prominent e.g. placed directly in front of the camera and left there for an unduly long time (which may be measured in mere seconds).
Including a range of products or services of the same type is likely to reduce the impression of any commercial influence on the editorial process and, in turn, to reduce the risk of giving any one product or service undue prominence. For example, in a consumer item about DVD players, if every DVD player featured was of the same make, viewers may well suspect commercial influence on the editorial process and the brand is likely to be given undue prominence. Including a range of brands e.g. JVC, Sony, Panasonic ... is likely to reduce that impression.
Guests who are being interviewed in studio-based programmes and contributors in factual programmes should, wherever possible, be told in advance of filming not
to wear prominently branded clothing.
This is especially important if the guest or contributor has some commercial relationship with the brand in question e.g. a footballer, who is sponsored by Nike, should not be shown wearing prominently branded Nike sportswear in a studio based item.
Viewers are likely to have different expectations depending on the situation in which contributors are filmed. For example, athletes being interviewed trackside are likely to be wearing clothing heavily branded with the marks of their sponsors and viewers will realise that programme-makers have little or no control over this.
In film and drama where, in most cases, programme-makers have a greater degree of control over what is shown on camera, there must be strong editorial justification for deliberately including any identifiably branded products and, even then, their prominence should be strictly limited to what is necessary editorially.
In documentary and factual programme-making, producers are unlikely to have much, if any, control over the surroundings in which they are filming. However, programme-makers should always be aware of branded items around them and ‘pieces to camera' and interviews should not be conducted against a backdrop with prominent commercial logos or names on it unless, exceptionally, it is editorially justified to do so e.g. the interview is
part of a news report about the brand in question. If in doubt, seek advice from the programme lawyer.
Product Placement
Agreements between programme-makers or broadcasters and external companies or agencies to include or to refer to commercial products or services within programme time in return for payment or something else of value e.g. free or discounted goods, are termed "product placement" and are generally prohibited.
Editorial Justification Exception
There is an exception to the general prohibition. Where their use within a programme is editorially justified, products or services may be acquired free or at less than full cost, providing this is not conditional on any specific agreement as to the manner of their appearance in the programme. In such cases, where the identity of the product is not otherwise apparent e.g. where a camera is shown but the make, e.g. "Fuji, is not seen or mentioned verbally, a brief text acknowledgement (on-screen for no more than approximately five seconds, with no logos or special fonts) to the provider of the product or service in the end credits may be given e.g. "With thanks to X". Note: the product may or may not give any indication of its provider e.g. a Fuji camera may be supplied by Fuji itself or a high street retailer e.g. Currys. If "Fuji" was seen on the camera in the programme or it was referred to verbally, it would not be permissible to credit Currys in the end credits.
Example
What is "editorially justified" will depend on the particular circumstances and the nature of the programme. For example, whilst it would be likely to be acceptable to receive free or discounted flights in a travel programme, as this would have a direct editorial connection to the subject of the programme, it would not be permissible to accept free or discounted designer clothes for the presenter in return either for an incidental product mention within the programme or an acknowledgement in the end credits. In such a case, there would be no editorial justification.
In the first example (free flights), no specific agreement could be made with the airline about whether or not the name of the airline would in fact be featured or how it might be featured but it may well be that, editorially, the programme-makers would want to make such a reference, in which case that would be acceptable. If, as it turned out, the name or identity of the airline was not apparent from watching the programme, a credit to the provider could be given in the end credits, as above.
Since often it may not be clear whether or not such editorial justification exists, producers must always seek advice from the programme lawyer before accepting such products or services for free or at less than their full cost.
Purchased Programmes
In other countries, product placement or deals similar to product placement are permissible. Ofcom rules state that if UK licensed broadcasters purchase programmes that contain products or services which have been the subject of a product placement type agreement, they can be shown but only as long as the UK licensed broadcaster does not directly benefit from the arrangement e.g. financially. The same principle applies to films that are originally made only for cinema release and contain product placement. However, broadcasters must still ensure that such programmes and films do not contain undue prominence of commercial products or services, regardless of whether or not the inclusion of the product/service in question is the result of product placement. Editing may still be required.
Programme-Related Material
"Programme-related material" is defined as products or services that are directly derived from a specific programme and are intended to allow viewers to benefit fully from, or to interact with that programme. Programme-related material may include a book or DVD of a series; a live event directly derived from a programme; downloads of outtakes from a programme; a telephone service providing further information about issues discussed in a programme; the programme itself if available on another channel; a factsheet or website containing relevant information about the programme, premium rate telephone numbers, or SMS text services. The following rules apply:
- All such material can be promoted within programmes or around the programmes to which they relate i.e. within presentation time, as long as it is editorially justified to do so and we, as the broadcaster, retain responsibility for the material. Generally this means that we, as the broadcaster, should be in a position to exercise editorial control over the content of the programme-related material.
- To avoid giving undue prominence to programme-related material, any references to such material within programmes or in presentation time should be kept brief and confined to the name of the item, its cost and availability. In most cases, there will be no editorial justification in naming specific retailers where the material can be obtained from.
Premium Rate Services
At the time of publication Ofcom is consulting on proposals to amend the Code's rules for programmes involving participation by viewers or listeners via premium rate services. Any updates to the Code will be published on Ofcom's website and updated to the Handbook will be published on the Handbook website.
Premium rate telephone numbers and other services should not be included in programmes unless their inclusion is editorially justified and should not be promoted within programmes unless they fall within the definition of "programme-related material" (see above), in which case:
- full control, including editorial control, of any premium line messages must be retained;
- the arrangements must comply with the PhonepayPlus (formerly ICSTIS) Code of Practice;
- the service must only convey information which is directly relevant to the programme with which it is associated and which is of benefit to viewers;
- the service must not promote any product or service, except programme-related materials; and,
- detailed rules on the provision of on-screen call charge information apply.
You must read and follow the 'Use of Telephony Services' Checklist, Chapter 6G .
Competitions
Viewer competitions and game shows are an established part of many types of programming and will often have brand names or commercial organisations associated with them, either in connection with the prize itself or the prize donor, or both.
To ensure that brands and commercial organisations associated with competitions do not receive undue prominence, the Code states: "References to brands within competitions must be brief and secondary".
In practice, the following rules should be followed in order to achieve this:
- As a general rule, any one viewer competition or game show should have no more than two pairs of verbal and visual commercial references associated with it, per programme part. Advice should be sought from the programme lawyer on the cumulative effect of such references occurring in more than one part if that is intended.
- References may be verbal and/or visual e.g. "To win a Nokia phone ..." - the presenter or voiceover could say "Nokia" and also show the phone, with Nokia written on it. That would be one reference (i.e. one pair). Additionally, the brand or logo of the prize donor may be referred to e.g. "To win a Nokia phone courtesy of Vodafone ..." - here "Nokia" could be mentioned verbally and the phone (containing the word Nokia) shown (1 mention); and, Vodafone could also be named as the donor verbally and a caption with the name "Vodafone" shown (a further 1 mention). So, a total of 2 pairs of references i.e. the maximum allowed within one programme part.
- References should be kept factual and non-promotional e.g. "To win a first class trip to New York, courtesy of British Airways, answer the following..." rather than: "To win a first class trip to New York courtesy of the world's favourite airline, British Airways, answer the following ...". References to commercial products/services or organisations in connection with competitions should not sound like advertisements.
- Visual references should be brief and not unduly prominent. As a general rule,
a caption containing a brand name or logo should never occupy more than approximately 10% of the screen and should be on screen for no longer than 5-10 seconds. - There may be a number of competitions within a single programme e.g. shows in the past have featured a different viewer competition around each and every ad break i.e. question before the break with the answer and the winner announced after it. However, where programmes contain more than one competition, prizes and prize donors should be different for each competition, to reduce the risk of giving undue prominence to particular commercial brands. Advice should be sought from the programme lawyer on whether the cumulative effect of all the competitions taken together is problematic.
Examples
- "To win a holiday to Disneyland Paris (1 verbal reference) courtesy of e:bookers..." (1 verbal reference), answer the following question ... Here there are two commercial references, both verbal.
- "To win a year's supply of Perrier (accompanied by a picture of bottles of Perrier with the logo and name shown) (1 pair, verbal and visual) courtesy of Nestle, (accompanied with caption showing company logo), (1 pair of verbal and visual) - total 2 references, which is acceptable.
Note: if the method of entering a viewer competition generates revenue and involves a premium above the normal rate for that mode of communication e.g. in the case of entry by telephone, the call costs more than what the user pays for any call to any other non-commercial user, the competition must either involve a significant element of skill e.g. the viewer must answer a question at a level of skill sufficiently rigorous to meet legal requirements (on which advice should be sought from the programme lawyer) or the competition must have free means of entry e.g. by post and/or via a website, and those free means of entry must be promoted with due prominence when compared to the premium rate paying routes in terms of size, frequency and duration, otherwise the competition may be classed as an "illegal lottery". This would be a criminal offence.
Legal advice must be sought at an early stage to ensure competitions comply with the provisions of the Gambling Act 2005, which came into effect on 1 September 2007. Finally, note that in children's competitions, prizes must be appropriate to the age range of both the target audience and the participants. For example, young children should not be competing for large cash prizes.
All competitions within programmes must be referred in advance to the programme lawyer for advice on the above matters.
Advertisements within Programmes
Generally advertisements must be clearly separated from programmes. However, all types of programming including news, current affairs, factual and entertainment programmes, may contain advertisements or clips from advertisements, if there is sufficient editorial justification.
For example, it may be editorially justified to show a clip of an advertisement for a brand in a news or factual programme, perhaps as part of a report about the commercial fortunes of the brand in question, particularly if the ad campaign referred to is particularly relevant.
Only as much of the advertisement should be shown as is justified by the editorial requirements of the programme. In most cases it is likely to be appropriate to remove the ‘pack shot' i.e. the shot normally at the end of an advertisement where the product or brand is named and shown for a number of seconds.
If the producer intends to include an advertisement or any part of one within a programme, particularly if it is current and is being transmitted within paid-for advertising time, advice must be sought from the programme lawyer at an early stage.
Appeals for Charity
Broadcasters are able to make appeals for charities within programmes, as long as they do not charge the charities to do so and provided that the broadcaster has satisfied itself that:
- the charity can produce satisfactory evidence of charitable status;
- in the case of an emergency appeal, that a responsible public fund has been set up to deal with donations; and
- the organisation concerned is not prohibited from advertising on television.
In addition, there is a general requirement that, where possible, appeals, either individually or over time should benefit a wide range of charities i.e. repeated appeals for one or a small number of the same charities would be unacceptable.