Advertising regulation under draft Bill for General Audiovisual Communication Law

The draft Bill for the General Audiovisual Communication Law was published in the Official Gazette on 23rd October 2009. The bill aims to transpose into Spanish law the EU Audiovisual Media Services Directive (2007/65/EC). The bill has been approved by the Spanish Congress and is now being analysed by the Senate. This article covers the main points of the bill relating to television advertising.

Advertising identification
The bill establishes an obligation to identify advertising messages clearly to distinguish them from other audiovisual content (Articles 6.3 and 13.1). This obligation is elaborated upon in Article 14, which provides that both advertising messages on television and teleshopping content must be clearly differentiated from actual programmes by acoustic and optical means in line with the general criteria established by the competent audiovisual authority. The bill clarifies that advertising cannot be differentiated by means of an increase in volume in relation to the preceding programme content, which is currently a commonly used technique.

The bill also expressly requires the permanent superimposition of the word “advertising”, in clearly legible form, throughout the airing of infomercials, telepromotions and any form of advertising other than television commercials which could, in view of the manner in which they are broadcast, lead to confusion in the mind of the viewer as to whether they are in fact advertisements.

Advertising targeting minors
Also of relevance are the rules set down in relation to advertising and minors. The general principle is the avoidance of moral or physical harm to minors, and the bill lays down a series of rules for this purpose. According to Article 7.3 of the bill, advertising:

• Cannot directly encourage minors to purchase or lease products or services by taking advantage of their inexperience or credulity.
• Cannot directly encourage minors to persuade their parents or third parties to buy the advertised goods or services.
• Must not exploit the special trust placed by minors in their parents, teachers or other persons.
• Must not, without due cause, show minors in dangerous situations.
• Must not encourage conduct which favours inequality between the sexes.

Quantitative restrictions on television advertising
Another important aspect of the bill is the provisions regarding the amount of advertising which may be aired per hour. Article 14.1 of the bill stipulates that providers of audiovisual communications services – whether radiophonic, televisuslor connected and interactive - are entitled to broadcast advertising messages. Radiophonic and connected and interactive services are entitled to broadcast advertising messages without restriction, whereas the providers of television audiovisual communications services can to broadcast 12 minutes of advertising messages per clock hour.

However, certain forms of advertising do not count towards these 12 minutes: sponsorship, placement and telepromotion (although the duration of an individual telepromotion message must clearly exceed that of a conventional advertising message and the telepromotion content broadcast cannot, in aggregate, exceed 12 minutes per clock hour). In addition, programmes or announcements with respect to the audiovisual communications service’s actual programmes do not count towards the 12 minutes. Indeed, Article 13 of the bill stipulates that these programmes and announcements are not to be regarded as commercial communications for the purposes of the law. However, although self-promotion does not count towards the maximum 12 minutes allowed, it is subject to the restrictions established in Article 13.2, which stipulates that:

“the time allotted to announcements advertising own programmes cannot exceed five minutes per clock hour, and the content of such announcements shall be subject to the same obligations and bans as are established in general terms for commercial advertising.”

This presents a contradiction; according to the bill, these announcements are not commercial communications, yet they are made subject to advertising rules. All the bill does is stipulate that they do not count towards the 12 minutes.

The hourly 12-minute limit on advertising does not apply in the case of private audiovisual communications service providers when they create channels which exclusively broadcast advertising and teleshopping messages.

Interruptions for advertising
The bill also regulates the interruption of the airing of a programme or transmission in order to insert advertising. Various cases are envisaged:

“The broadcasting of films for television (excluding series, serials and documentaries), feature films and television news programmes may be interrupted once for every period of 30 minutes scheduled. In the case of children’s programmes, there can be one interruption for every uninterrupted period of 30 minutes scheduled provided that the programme lasts more than 30 minutes.

Television transmissions of sporting events can only be interrupted by advertising messages broadcast in isolation when the event is at a standstill. When these events are not divided up into autonomous sections, advertising messages may be inserted provided the event can still be followed. No television or teleshopping advertisements can be inserted during religious services.”

Teleshopping and sponsorship
According to Article 15.2 of the bill, the providers of audiovisual communication services are entitled to broadcast teleshopping programmes, provided that the uninterrupted duration of such programmes is at least 15 minutes.

The bill also recognises the possibility of programme sponsorship, except in the case of news programmes. Nevertheless, certain restrictions are imposed on such sponsorship, which may not compromise editorial independence or directly encourage the viewer to buy or lease particular goods or services by means of specific promotional references to them. Similarly, the sponsorship cannot affect the content of the programme or audiovisual communication sponsored, or the timing of its airing, in any way which affects the responsibility of the provider of the audiovisual communications service (Article 16.3). In addition, the viewer must be clearly informed of the sponsorship at the start of the programme, at the beginning of each resumption following any breaks or at the end of the programme by means of the name, logo or any other symbol, product or service of the sponsor.

Product placement
Previously, Spanish legislation included no detailed regulation on the placement of products in series, films and television programmes as a means of advertising and thus of financing such series and programmes. In practice, however, this technique is used constantly.

At times jurists and certain rulings of the Autocontrol Advertising Self-Regulation Committee have taken the view that product placement is a type of concealed advertising and is therefore to be regarded as misleading advertising.

The situation has now been clarified. The bill stipulates that product placement is lawful provided that certain requirements are met. Article 17 places a ban on product placement within children’s programmes. In all other cases, audiovisual communications service providers are entitled to broadcast feature films, short films, documentaries, films and television series, sports programmes and entertainment programmes containing product placement. For all other programmes, product placement is permitted only in exchange for the supply of goods or services free of charge.

Although product placement is allowed, the bill establishes certain limits. The placement cannot compromise editorial independence or can it encourage the viewer directly to purchase or lease goods or services, specifically promote products or services or place the product in a position of undue prominence. The audience must be informed of the product placement when the programme has been produced or commissioned by the service provider or one of its subsidiaries, with viewers being clearly informed of the product placement at the beginning and the end of the programme and when the programme resumes following a commercial break.

Ban on certain types of advertising
The bill also reiterates certain advertising bans which were already in place under the General Advertising Law 1988 and under special advertising rules, such as the bans on:

• Advertising which does not respect human dignity.
• Subliminal advertising.
• Advertising which encourages behaviour that is harmful to health (ie, tobacco, alcoholic beverages with a proof rating in excess of 20%).

Also banned is the advertising of alcoholic beverages with a proof rating of less than 20% which:

• Is targeted at minors.
• Encourages excessive consumption.
• Associates consumption with an improved physical performance, increased social success or improved health.

A ban is also placed on the broadcasting of such advertising outside the hours of 8:30pm to 6:00am the next day, except when this advertising forms an inseparable part of the acquisition of rights and production of the signal to be broadcast. Further, advertising which encourages behaviour which is harmful to the environment or personal safety is banned.