Branded Content: Ofcom Upholds Complaints Against ‰”The Myspace Chart Show‰” and ‰”Dexter‰” TV Programmes

Ofcom has recently published two adjudications giving guidance on how it interprets the Broadcasting Code rules relating to programme sponsorship.

Section 9 of Ofcom’s Broadcasting Code regulates the sponsorship of programmes. The relevant Rules are as follows:

Rule 9.4 A sponsor must not influence the content and/or scheduling of a channel or programme in such a way as to impair the responsibility and editorial independence of the broadcaster.

Rule 9.5 There must be no promotional reference to the sponsor, its name, trademark, image, activities, services or products or to any of its other direct or indirect interests. There must be no promotional generic references. Non-promotional references are permitted only where they are editorially justified and incidental.

“Promotional reference” includes, but is not limited to, references that encourage, or are intended to encourage, the purchase or rental of a product or service.

Rule 9.13  Sponsorship must be clearly separated from advertising. Sponsor credits must not contain advertising messages or calls to action. In particular, credits must not encourage the purchase or rental of the products or services of the sponsor or a third party.

The MySpace Chart Show (MTV2, February 2009)

The MySpace Chart Show features music from a chart compiled by viewer votes. As its name indicates, this programme is sponsored by the social networking website, MySpace. The videos can also be watched on the programme’s own website or on its dedicated MySpace page.

Ofcom’s concern arose because, throughout each one hour show, the programme’s title, which incorporates the sponsor’s name, was visible on screen and that this could amount to a breach of Rules 9.4 (no influence) and 9.5 (no promotional reference).

Ofcom’s Findings

1. Ofcom accepted the broadcaster MTVNE’s assurances that the sponsorship arrangement had not unduly influenced the content and scheduling of the programme and found that there had been no breach of Rule 9.4.
2. Ofcom rejected MTVNE’s argument that the on-screen appearance of the programme’s name was editorially justified because it helped viewers to identify what it was they were watching.
3. Ofcom explained that whilst it was acceptable to incorporate a sponsor’s name into a programme title in order to identify that sponsor, undue prominence must not be given by extensive references to that title during the programme.
4. Ofcom held that the use throughout each show of a visible on-screen graphic containing the sponsor’s name was excessive, not incidental and not editorially justifiable and, as such, it breached Rule 9.5 of the Code.

Dexter: The Series (FX, May 2009)

Dexter, a crime series broadcast on the FX channel, was sponsored by the producers of the Hollywood film Angels and Demons which was about to be released.

The sponsor credits, shown at the beginning and end of the programmes, were 15 seconds long and contained, apart from two short voiceovers, only footage and audio taken from the film. In appearance they look very much like trailers. The internal “bumpers”, ie the sponsor credits featured during the programme on either side of advertising breaks, were shorter but, like the longer sponsor credits, included a caption with the film’s website address which crucially itself included the film’s release date.

Ofcom was concerned that the inclusion of the release date in the film’s website address, the prominence given to that address and the fact that the sponsor credits appeared to be little more than trailers all amounted to a breach of Rule 9.13 (separation and no advertising).

Ofcom’s Findings

1. FX promptly apologised and accepted that it had “got the balance of credits wrong” and that “undoubtedly these credits are in breach of Rule 9.13” and agreed to replace the infringing credits immediately.
2. Ofcom explained that Rule 9.13 is there to ensure that sponsor credits do not resemble adverts (whether deliberately or otherwise) because sponsor credits do not count towards the amount of advertising permitted.
3. When judging whether a sponsor credit is sufficiently distinct from advertising, Ofcom will consider the following factors:
   1. The primary focus of the sponsor credits must be the sponsorship arrangement itself and not the sponsor’s product or service.
   2. Information in the sponsor credits relating to the sponsor’s product or service must be brief and for the purpose of identifying the sponsor. Detailed descriptions or claims, especially those capable of objective verification (eg market leadership, price, efficacy, etc) are likely to breach Rule 9.13.
   3. Although the sponsor credits can contain basic contact details, they should not amount to calls to action such as inviting viewers to contact the sponsor or purchase its product or service.
4. In Ofcom’s view, the overall appearance of the sponsor credits including, in particular, the film’s release date in the sponsor’s website address amounted to a breach of Rule 9.13.

Conclusion

The appearance on-screen throughout a show of a sponsor’s logo is likely to amount to a breach of Rule 9.5 as being excessively prominent and editorially unjustified.

The main purpose of sponsor credits is to draw attention to the sponsorship arrangement and not to the sponsor’s products or services. Sponsor credits must not act as adverts.

Product names and website addresses can be used in sponsor credits but these names and addresses must not contain claims or other information characteristic of adverts.