Radio Authority response to ITC Advertising Code Review

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Radio Authority response to ITC Advertising Code Review Powered By Docstoc
					2 April 2002

Advertising Code Review
33 Foley Street
London W1W 7TL

Dear Colleagues,

ITC Advertising Standards Code Consultation

Thank you for giving the Radio Authority the opportunity to comment on your draft
revised Code.

Before we discuss your draft Code in detail, we should first of all tell you that for the
most part it seemed to us to be clear and updated in a generally useful way. Indeed,
where the Radio Authority believes your Code has introduced a lighter touch than our
own which we might be able to adopt (such as your rules on Betting and Gaming), we
are likely to be consulting to make changes on the basis of your final draft as soon as
it has been agreed. Where our own touch remains lighter than yours, we have drawn
your attention to our experience, so that you might consider further amendment.

Whatever the outcome, though, the Radio Authority believes that radio and television,
as different media, are likely to require different solutions in a number of areas of
advertising regulation, so that, whether or not you decide to adopt any of our
comments into your own Code, it seems to us right, proper and important that
different Advertising and Sponsorship Codes continue to apply to radio and to

We can also tell you that we discussed your Code informally with the Radio
Advertising Clearance Centre at our regular liaison meeting with them and we were in
broad agreement with each other about most of the points each of us intended to make.

The Radio Authority‟s comments are as follows:

P6 Introduction: The Radio Authority‟s Code states here that the Code is based on
the requirements of the Broadcasting Act 1990 and also how it is drawn up and
consulted on. Additionally, our Code sets out here our relationship with the Radio
Advertising Clearance Centre and their remit (that they are required to clear all special
category advertisements, which is not the case for TV advertisements). We believe
these are useful scene setters, which we commend to you for your own Code.

P9 Note to Rule 3.1.1: We suggest you delete “In ambiguous cases concerning
identification” and instead insert “Where this is not clear”.

P10 Note 2: We suggest you delete this (“The ITC can offer advice….”) You have
already stated you will offer advice generally, so we think this is superfluous.
P10 Rule 3.3.2(iv) and Note 1: This presumably also excludes merchandising from
those programmes and magazines etc which feature characters or merchandising?

P11 Rule 4.1 Unacceptable Products and Services: The Radio Authority lifted the
radio advertising prohibitions on breath-testing devices, private investigation agencies,
products for the treatment of alcoholism, hypnosis-based procedures, psychiatry,
psychology, psychoanalysis and psychotherapy and commercial services offering
advice on personal and consumer problems in December 2000. We also allowed
escort agencies to advertise, provided they are not „fronts‟ for prostitution. These are
all „special‟ categories (subject to certain requirements and restrictions) and require
central clearance by the RACC. However, there have been no problems and no
complaints. If the prohibitions remain, would they disallow groups like Alcoholics
Anonymous, for example?

We modified two other categories in this list. The prohibition on guns and gun clubs
was extended to all offensive weapons, including replicas. The prohibition on the
occult was effectively removed, subject to certain conditions (see below).

Our intention has been to extend the prohibition to all tobacco products when the law
requires, and we consulted publicly on this last year.

As mentioned above, the Radio Authority will consult to relax current prohibitions on
the advertising of betting and gaming services up to and not exceeding the statutory
position as soon as the ITC‟s final draft is available.

Note 4.1 Unacceptable Products and Services: We suggest you include details of
other unacceptable categories here too, so that all advertising prohibitions are easily
located in one place.

P13 Rule 5 Political and Controversial Issues: We suggest you quote here the
relevant parts of the Broadcasting Act 1990, on which this rule is based.

P13 Rule 6 Misleading Advertising: We suggest you quote the exact terms of the
Regulations, so as to put the ITC‟s obligations in context.

P16 Note 3 to Rule 6.3: We wonder whether “Whilst only the courts can interpret the
law” should be qualified or modified, as, in fact, all of us who use advertising codes
are required to interpret the law.

P.17 Rule 6.4 Denigration: We are inclined to agree with the RACC‟s
recommendation that the word “unfairly” in the context of “must not unfairly attack or
discredit other products or … advertisers …” should be removed, unless you have any
specific reason for including it.

Pp. 17-19 Rules 6.5-6.9: We are likely to adopt much of your wording.
P19 Rule 6.8: We suggest you insert “any” after “clear” to make the meaning clear.
P20 Rule 7 Finance and Investment: We introduced considerably more detail about
individual elements of financial advertising in the Code Rule changes that we made in
this area to coincide with the implementation of the FSMA (1 December 2001), whose
contents were unfamiliar to most Code users at the time. Similarly, we also kept
considerable detail which was unaffected by FSMA, as we were also aware that
tranches of legislation were likely to require major Rule changes in the near future.
However, although published proposals appear to have been reconsidered by
Government, and delays appear inevitable, we are unlikely to a conduct any major
revision of our financial rules until the responsibilities of the FSA concerning any
specific area of finance have been finalised. The detail in our Code is there to help
licensees, advertisers, agencies etc, rather than to regulate heavily. We have received
good feedback about this approach in this area and in the Radio Authority‟s Code as a

P22 Rule 7.5.1 Investment Advertising: The Radio Authority removed advertising
prohibitions in this area which were not banned by other law in December 2000.
However, all financial advertising is subject to clearance by the Radio Advertising
Clearance Centre.

P.22 Rule 7.6 Financial Promotions: We have explained in our Code how FSMA
defines a financial promotion, in order that it is not confused with a broadcast
programme promotion. We note you have done this to some extent in your
introduction, Background (4), but we suggest you might usefully expand it further.

P28 Rule 8.2.11(b): A comma is needed after “groups”.

P.30 Rule 8.3.1 Note (1): “Such claim” should be “Such claims”. Notes 2 and 3 will
be incorporated in this way in our own Code.

P33 Rule 8.4.5 and 6: This will be incorporated in this way in our own Code.

Pp 34-36 Rule 9 Harm and Offence: We appreciate the intention of this new set of
Rules. In particular the Radio Authority has added Harm to the main body of our own
rules in this area to reflect the requirements of the recent Human Rights Act.

However, although we fully support your intention to update your Code and make it
more user friendly, we are concerned about the way in which the new set of rules on
Offence depart from what is currently defined by the Broadcasting Act 1990 and the
generality of previous guidance in this area. In particular that your draft Rules appear
to have taken on some of the wording, eg “community standards”, that was originally
suggested for the new Communications Bill but which has now already been
removed/amended. Since the Bill is still in draft and must in future be debated
through Parliament, where it may undergo changes, particularly in this very sensitive
area of significant public concern, we suggest that it could be confusing or even
unhelpful to adopt any of this kind of „transitory‟ wording until the matter is very
much more settled.
Your draft Rule works very hard to avoid the “offends against good taste or decency”
and “offensive to public feeling” wording of successive Broadcasting Acts which we
have all worked to until now, but we still find it very relevant. Its brevity and
precision allows it to cover all circumstances depending on how it is applied by those
of us who use it. Obviously, “offensive” works hardest and covers most
circumstances, but the Radio Authority also still has occasion to refer to “offence
against good taste” (poor taste) sometimes (where death and bereavement are
concerned, for example) rather than offensive, and “decency” has a moral weight and
implication which the replacements so far suggested, such as “human dignity”, do not.
(As I finalise this letter, for example, we have just ruled that an advertisement which
includes a deathbed scenario is currently likely to “offend against good taste” during
the mourning period for the Queen Mother, although we do not believe the
advertisement in itself is “offensive to public feeling”.)

We suggest you reconsider this entire section and whether or not it would be wise to
make these changes at this time, but if you do not, we have the following comments to

P34 Rule 9 Note (1) 2nd para: We suggest you delete first sentence “The ITC will
not, ….standards.” (“community” has already been removed from the Bill). We
agree that there can be differences about taste, but (see above) there are circumstances
in relation to taste as „sensibility‟ rather than taste as „preference‟ where offence to
taste still has relevance. Last line: We suggest you delete “may wish to” and instead
insert “should”; and delete “taste” and instead inserts “offence”.
Note 2: We suggest you insert “sometimes” after “humour may”.

P35 Rule 9.1: We suggest you reconsider the title and the wording of the whole of
this Rule and the Notes. However, if the Notes stand, we suggest:
Note (1): Delete “society has shared interests and rules of behaviour in areas such as”
and instead insert “there is generally likely to be consensus about areas such as”;
(i) Insert “addiction, crime” after “cruelty”;
(ii) Insert “the individual, as well as groups and” after “standards of”;
(iii) Delete “ faith, ceremonies”, insert “or spiritual beliefs, rites,”
(iv) Insert “including sacred language” after “offensive language”; delete wording in
brackets altogether, or simply refer to research, as this report might be superseded by
other research during the life of the Code.
Note 2: Delete this altogether (the wording “programmes containing comparable
material” may not on its own be helpful as a benchmark) or reword from the
perspective of “responsible judgements” “taking account of the sensitivities of the
particular audience”, type of output, time of day, etc.

Rule 9.2.2: Delete “of people or animals”, as vandalism, for example, is also relevant
Note (1): Reword 2nd and 3rd sentences as “ “Theatrical” cartoon or slapstick violence
(for example, in action /adventure) may be generally acceptable. Problems are more
likely to arise where the violence seems to be real or commonplace and involve
ordinary people in everyday life.”
Note 2: Delete “Care should be taken that” and “do” and instead insert “should” after
Our Code covers matters such as stereotyping, sexual violence, and that clips for
media products should accurately portray the product while observing these rules.
You have not, anywhere in Rule 9, covered these matters but may wish to do so.

P36 Rule 9.3 Note: Delete “Please note” and insert instead “should be followed.”
after “Animals in Advertising”.

P36 Rule 9.4: We agree that it is useful to cover “distress” in this section of your
Code and we intend to introduce it into our own Code, probably under Harm.
However, “personal distress” is by definition personal and may not be connected to
“significant numbers”, so it is difficult to know what might fall under this Rule.
Note (1) refers to “appeal to fear” but this is not the same as “Personal Distress”. We
suggest you could make the link by inserting “ or alarm” after “serious personal
distress” in the Rule itself. We suggest you delete “A mild frisson might be
acceptable in” and amend the next two sentences to “Demonstrating, for example, the
risks in not buying life insurance is likely to be less acceptable than those of not
observing road safety advertising.”

P38 Rule 9.6 Note (5): Why does this refer only to children? Adults can also be
bullied (and see P44 Rule 10.3.3).

P38 Rule 9.8: We suggest you insert “wellbeing of the” after “prejudicial to the”.

P46 Notes, last 4 paras: This appears to us to be very specific for Code notes. Do
you intend that it should be this specific?

P42 Rule 10.3 Harm and Distress to the Young: We suggest you add “Offence”, as
the Young can also be offended.

P48 Rule 11 Religion, Faith and Systems of Belief: We applaud much of the
wording in this section, which is very user friendly. However, the Radio Authority
removed many of its Code restrictions on religious advertising in December 2000.
Unlike on TV, all religious advertisements on radio are cleared by the Radio
Advertising Clearance Centre and we have received no complaints at all about cleared
religious advertising since our new Code was introduced.

P 50 Rule 11.3 The Occult and Psychic Practices: The Radio Authority‟s Code Rule
is now called “Divination and the Supernatural” and allows the advertising of
“products and services of a psychic nature” subject to certain restrictions and as long
as no claims of efficacy are made. No significant problems have arisen from this

P58 Rule 12.6 Betting and Gaming: The Radio Authority will be observing
comment on this section of your draft Code with interest. As soon as the ITC‟s final
draft is available, we are likely to amend and consult briefly on this section of our own
Code with a view to implementing similar changes. All advertisements in this section
require RACC clearance. In order to regulate effectively here, it is likely that, as with
other areas of the Code, we will require the RACC to obtain written assurances from
advertisers that what is proposed meets all legal requirements.

P59 Rule 12.8: The Radio Authority applauds most of the new wording, which we
may adopt ourselves in future.

P60 Rule 12.8.1(b): We suggest you delete “masculinity” insert instead “gender”.

This concludes our views; we hope they are useful. Thank you once again for the
chance to comment. We are content that this full submission is made public.

Best Wishes,

Yours sincerely

Deputy Director of Programming and Advertising