Recognizability of Advertising and Protecting Minors Key Questions
Keeping programming and advertising separate is in the interests of both the publisher and the advertiser. Placing commercial messages in a programme or blurring the distinction between advertising and programming in some other way hurts both sides' credibility, although the development of this type of advertising to finance programmes may be attractive. In practice mixing the two almost always results in surreptitious advertising. This is not allowed, since consumers have the right to know when someone is trying to influence them commercially.
The proposed revision of the Television Without Frontiers Directive has been circulated for comments. The goal is to set minimum rules for all technical programme activities regardless of the technical broadcasting method. In addition to traditional TV and radio programmes the Directive would apply to all audiovisual services, such as films and programmes ordered on a computer or mobile phone.
The Consumer Agency considers this technology-independent approach good, since viewers' interest when it comes to recognizing advertising or taking the special position of minors into account is the same no matter what medium is used.
Marketing forms are developing
The proposed Directive is aimed at modernizing advertising rules. The concept of commercial communications remains unclear in the revision, however. Marketing also takes place nowadays outside traditional commercial breaks, for example in game programmes. Since advertisers are not allowed to appeal directly to children to buy services, for example, this is done inside interactive "programmes". The concept of commercial communications should be clarified and paid entertainment services should be included in it.
The basic principles in the proposed Directive are clear: commercial communications must be recognizable as such and surreptitious advertising is prohibited. The Consumer Agency believes it is important to ensure the achievement of these objectives regardless of what formats, services or marketing methods new communications technology may bring with it.
Challenges of product placement
Product placement is one form of text advertising that has traditionally been prohibited on ethical grounds in journalistic guidelines. Incorruptibility and commercial independence have been considered key cornerstones of editorial credibility.
The Consumer Agency believes that from the viewpoint of general principles (the recognizability of advertising and the prohibition of surreptitious advertising) products can be shown in programmes if this is based on editorial choice. For example, in magazine-type programmes different products could be compared and evaluated. Brands could also be shown in natural connections in drama programmes, for example.
Showing products or brands in programmes becomes advertising - and in practice usually surreptitious advertising - when it is done in return for payment or for similar consideration.
The proposed Directive would allow product placement on certain conditions. Product placement would be prohibited if it contains references of an advertising nature or if it meets the criteria for surreptitious advertising: it is intentional, it serves an advertising purpose and there is a risk that it will mislead the audience as to the nature of the presentation.
The line between permitted product placement and prohibited surreptitious advertising remains unclear and complex in the proposal. If advertising is allowed inside programming, it should be subject to the same rules as marketing elsewhere. It should always be recognizable as advertising and consumers should not be misled in this respect. This risk cannot be eliminated by mentioning product placement at the beginning or end of a programme, since consumers may not notice these texts - few people watch all the texts at the beginning or end of a programme. In practice it is hard to imagine product placement that is not surreptitious advertising.
Mentioning sponsorship should not be expanded into advertising
Programme sponsorship is permitted but a sponsor may not influence the content of a programme and a programme may not promote sales of a sponsor's products. A sponsor's image benefits from support, which is mentioned at the beginning and end of a programme. Mentions at the beginning and end of a programme also ensure recognizability and are compulsory under the present Directive.
According to the proposed revision, sponsorship could also be mentioned during a programme. The Consumer Agency believes that this would not serve recognizability but would bring advertising inside a programme and cause the same types of problems as product placement aimed at promoting sales. Sponsorship should not be offered ways to get around requirements concerning recognizability, placement, quality and quantity.
Technology to identify minors would solve many problems
The goal of rules concerning minors is to protect children from adult entertainment or otherwise unsuitable programmes and advertising, among other things. In the case of traditional TV broadcasts this has been achieved through guidelines concerning broadcast times etc.
The increase in pay-per-view and interactive programmes significantly changes the situation. If adult entertainment can be ordered online, for example, the seller should verify that the customer is not a minor. Simply asking a person's age on a form without verifying it is not enough, since a minor can easily lie and check the adult box. The Act on the Classification of Audiovisual Programmes expressly forbids supplying such programmes to minors, however.
The Consumer Agency has long drawn the attention of suppliers of online services to the fact that they are responsible for developing their systems so that operations comply with the law. Technical difficulty is not an excuse to disobey the law.
Although Finland has an advanced information society, service providers have not invested in technology to identify contract partners. Identification is possible, however, as the Finnish National Lottery's product development shows. In practice businesses enter all kinds of contracts with children over mobile phones or the Internet and sell children all kinds of services regardless of whether this is allowed under the Guardianship Services Act.