In its latest Broadcast Bulletin, Ofcom has resolved a complaint against Channel 4 relating to an advertisement for a film which invited viewers to send in Tweets on what they thought of the film, and then broadcast the positive Tweets from viewers in a subsequent advert. The complaint alleged that the broadcast confused viewers as to whether they were watching an impartial continuity announcement or a paid advertisement. Although Ofcom considered that there were several aspects of the material that would give rise to confusion as to the nature of the piece, they determined the matter to be resolved as Channel 4 had introduced subsequent policy changes to ensure that similar confusion did not occur again.
During an episode of Homeland aired on Channel 4 in April 2012, Channel 4 broadcast content about the film Prometheus in two of the advertising breaks. The first showed a full-screen Channel 4 logo, as the continuity announcer introduced the trailer for the film Prometheus and invited viewers to send in Tweets expressing their opinion using the hashtag #areyouseeingthis. The trailer was then shown. The next advertising break featured a number of these viewer Tweets on screen, all of which expressed a positive view of the film, including “Prometheus is shaping up to be the best film of the year”, and “Awesome cast, fantastic director. Can’t wait”. The Channel 4 announcer then stated, “Ridley Scott is back to the genre he defined and we are massively excited about it. Prometheus in cinemas June 1st. Book your tickets now”.
A viewer complained to Ofcom that the content “totally confuses the viewer about whether they are watching an impartial continuity announcement or a paid advertisement”.
The Audiovisual Media Services Directive requires advertising to be readily recognisable and distinguishable from editorial content (Article 19). Rule 11 of the Code of Scheduling of Television Advertising (COSTA) states:
“Broadcasters must ensure that television advertising and teleshopping is readily recognisable and distinguishable from editorial content and kept distinct from other parts of the programme service. This shall be done by optical (including spatial) means; acoustic signals may also be used as well.”
This is reflected in further provisions in the Ofcom Broadcasting Code and the Broadcast Committee of Advertising Practice (BCAP) Code of Broadcast Advertising, with the BCAP Code stating explicitly that “the audience should quickly recognise the message as an advertisement” (rule 2.1).
Ofcom investigated the complaint under Rule 11 of COSTA, and requested a response from Channel 4 indicating how the material was in compliance with this rule.
Ofcom noted that Channel 4 had deliberately inserted a black screen broadcast immediately after the programme followed by a Channel 4 ident with a white background and the word “Homeland”, to show viewers that the programme part had ended and indicate the start of the advertising break. Ofcom considered that viewers would be unlikely to doubt that the programme had been interrupted for a break.
However, Ofcom stated that the style of presentation of the Prometheus material had risked confusing viewers as to its nature. Simply inserting material in a break between programmes is not sufficient to identify it as advertising – breaks often contain non-advertising content such as programme trailers or news updates. Ofcom considered that although the first advertisement contained aspects that would normally be recognisable as advertising, such as the film trailer and release date, they were accompanied by other elements that are more usually associated with editorial content, such as the use of the channel’s logo, the voice of the channel’s continuity announcer, and use of language that suggested endorsement and ownership of the material, such as “we bring you a worldwide exclusive” and “we’d love to know what you think”.
Ofcom also took into account the fact that the Tweets that were displayed in the second advert all expressed a positive view of the film, and considered that viewers may have been confused as to whether they were viewing a selection of Tweets selected by Channel 4 for editorial reasons or for advertising purposes.
In its response Channel 4 had submitted that it was not in breach of COSTA or the BCAP Code, and stated that both advertisements had been cleared in advance by Clearcast, the broadcasting industry body that assesses television adverts on behalf of broadcasters before transmission. However, in spite of this, Channel 4 also set out a number of policy changes it had subsequently introduced to prevent any similar issues of confusion from occurring again. These changes included featuring text at the start of any similar advertisements stating that it is an advertisement, which is no longer an express requirement since the BCAP Code was revised in 2010 (though advertisers remain obliged to distinguish clearly between editorial content and advertising), and ensuring that any Channel 4 announcer featuring on the voiceover for the advert is not working on that channel on that day, to help prevent any confusion.
Ofcom stated that, although it was concerned about the extent to which the material was recognisable as advertising, in light of the changes introduced by Channel 4, and in particular the decision to include text clearly marking the material as advertising, Ofcom considered the matter to be resolved.
Soliciting viewer feedback via social media, and then using the messages submitted, is now a well-established practice in programming. However, it is now also becoming increasingly common in advertising. Ofcom clearly considers that it carries with it the risk of a blurring between editorial and advertising resulting in consumers being unsure of the manner in which the user-generated content is being used. This is illegal under the Consumer Protection from Unfair Trading Regulations, which bans the promotion of products by way of the use of paid-for editorial content without making it clear to consumers that the content is advertising. It is also in breach of various codes of practice.
In this case Ofcom was satisfied that the precautionary steps now introduced by Channel 4 will avoid consumers being misled by the content. Advertisers seeking to use user-generated content in this way would be well advised to adopt the same principles. Advertisers should also be aware that content solicited and re-used in this way could be regarded as misleading if they cherry pick positive responses and ignore negative ones; and that the fact that the content is user-generated does not mean that it falls outside the CAP and BCAP Codes. Also, copyright is likely to subsist in user-generated content, and there is a risk of a copyright claim if the appropriate licence is not obtained.