Digital Media Lawyer Steve Kuncewiczat for HBJ Gateley Wareing in Manchester, discusses how the newly implemented product placement rules will work.
As of 28 February 2011 Product Placement was permitted in UK Television Programmes, allowing brands to pay for their products to appear during broadcasts for the first time. The first product - a Nescafe Dolce Gusto Coffee Maker - has already made its way onto ITV1's "This Morning". Although product placement has always been permitted in international films or television programmes, Ofcom's new regulations have already drawn criticism from Church Leaders amongst others and were previously claimed by Andy Burnham MP to "put the reputation of British programmes up for sale".
Steve Kuncewicz, Digital Media Lawyer at HBJ Gateley Wareing in Manchester, comments on how the rules will work in practice.
"TV Advertising is a tough market right now, made more so by the advent of time-shifting and digital video recording – many viewers can now fast forward through advertisements without having to watch them, making return on investment even harder to demonstrate than usual for the creative industry. Product placement allows brands to reach their audience in a potentially much more effective way by integrating their products into a broadcast, but given that this is such a new concept to UK television it's going to have more than its fair share of critics.
Big shows such as The X Factor, Coronation Street and Come Dine With Me will be natural targets for brands, but only a few deals have already been done, with console and PC games developer Electronic Arts rumoured to be among the first. Many networks and producers still seem very cautious to avoid alienating their audience, who will most likely vote with their remotes if placement becomes too overt.
"Prop placement" has been permitted for years – characters in dramas have, for example, been able to drive cars from specific manufacturers without fear of reprisal, but the new regulations are designed to deal with the threat of "surreptitious advertising" and it's going to be interesting to see who is willing to open up high-profile programmes to placement: it's one thing to see Coronation Street with a "Harveys" ident, but would viewers put up with Ginsters Pasties or McCoys Crisps being handed over the bar? Interestingly, they won't have to contend with Newton & Ridley being replaced by Carlsberg, even if it is "the best lager in the World".
The rules for the new system are set out in Ofcom's Broadcasting Code which covers, amongst other things, standards, sponsorship, fairness and privacy. The Code itself is based on the Broadcasting Act 1996 and Communications Act 2003 – both were amended by the EU Audiovisual Media Services Directive 2010, which regulates all "audiovisual media services" and was designed to allow television to compete with converging online channels.
Viewers shouldn't expect a drastic change in content for some time to come; the revised Broadcasting Code sets out clear guidelines as to what it permitted and how placement is likely to function in practice:
- Product placement is now permitted in films (including dramas and documentaries), TV series (including soaps), entertainment shows and sports programmes
- Product placement is not permitted in news broadcasts, children's programming, religious, current affairs and consumer advice programmes made for UK audiences.
- Product placement is not permitted in programmes made for or broadcast by the BBC
- Cigarettes, other tobacco products, prescription medication, alcoholic drinks, gambling products, all other types of medicines, food and drink that is high in fat, salt, or sugar and baby milk can’t be placed in UK programmes along with products that cannot by law be advertised in other ways, such as Guns or other weapons .
Tempting as it may be to think that, subject to these exceptions, it's "open season" for placement, the rules state that there must be some ‘editorial justification’ for a product to be placed in a programme, i.e. the product must be relevant to what the programme is about and the content of programmes shouldn’t seem to be created or distorted just to feature the placed products. Storylines written to feature certain products won't make it past Ofcom.
Similarly, programmes can’t actively promote placed products, give them too much prominence or make any claims as to how good a particular product may be. So, seeing a cast member in "Lark Rise To Candleford" using an iPad 2 whilst extolling the virtues of an added camera so that they can use FaceTime looks unlikely.
Ofcom is in the midst of a forced education programme to inform the public about the new system, with channels obliged to show "on-screen information campaigns". A new "P" logo must now be shown to alert the audience that a programme will contain placed products at the beginning of a programme, repeated after any advertising break and again at the end. However, programmes originally broadcast outside the UK, such as any of a number of phenomenally-popular US dramas, will not need to show the logo, although any programme made specifically for broadcast in the UK through an Ofcom-licensed channel will.
Using the "P" logo may actually have a "Truman Show" effect, causing viewers to actively look out for any placed products and turn an audience who have been desensitised to brand messages into a much more alert "focus group". Some research from YouGov already suggests that the majority of the audience will not be swayed by placement. Whatever proves to be the case, the branding of the majority of UK television is now very much open for business. How successful that business proves to be remains to be seen.