The Ministry of Cultural Affairs
Nybrogade 2
DK-1203 København K.
31 March 2006
Ref. no. 1100/5-570 BW/BW
Concerning: Hearing on the Proposal to Amend the EC Directive ”Television without Frontiers”
In a letter of 23 February 2006 the Ministry of Cultural Affairs requested the Danish Consumer Ombudsman [DCO] to state his position on the proposal to amend the Directive.
His viewpoints are reflected in the following.
General Comments
The DCO is of the opinion that the contents of advertising and marketing should be covered by general and horizontal regulation regardless of the type of medium in which the advertising appears. Therefore the type of medium and its technological possibilities are of minor importance in this context as the DCO believes that the regulation of advertising and marketing in the information society should not be covered by the Directive in question.
A significant number of the rules regarding advertising and marketing in radio and television should, in the DCO’s opinion, be made applicable to all media in the information society. This goes in particular for the ban on covert marketing activities and the regulation protecting children and young people, which also sets out the principles of good marketing practice in this area.
Conflict of Laws Rule
Breaches that occur in relation to the transmission of radio and television programmes should be assessed under the existing marketing law in the Member State in which the programme is sent.
This becomes even more urgent in step with the technological development in general and the introduction of new technologies in media in particular. Where regulation takes place by means of minimum requirements such as it is the case with the Directive in question, it follows as a logical and necessary consequence.
Enforcing consumer protection in the individual Member State will also become more efficient in that national legislation cannot be circumvented by transmitting programmes from countries with a less restrictive legal approach to advertising and marketing (forum shopping).
Children’s Programmes and Films
The DCO believes that commercial breaks should not appear before and after the broadcasting of programmes of films intended for children and young people.
Product Placement
The proposed changes which allow for product placement under certain circumstances are not acceptable. The separation and identification of commercial and editorial content becomes less clear to the detriment of the consumer and the level of protection in general.
The DCO holds that advertising and marketing appearing on television and the new on-demand audiovisual services should present itself clearly to the viewer as such, and that editorial content should be easy to separate from commercial features. Information or warnings about features of commercial content in the beginning of a programme or towards the end are not deemed sufficient in that these information breaks tend to be both long and tedious and are often ignored; thus transparency and the necessary distinction is not ensured. The time in which they are shown is by most viewers used on other things.
By making product placement a regular and accepted feature in broadcasting activities, viewers are stripped of the right to decide on the extent to which they wish to expose themselves to commercial messages.
Moreover, children and young people, who often view programmes not intended for their age group, should not be exposed to this mixture of commercial and editorial contents. This problem is already envisaged in the Directive in that it contains a provision banning product placement in audiovisual media services such as children’s programmes and films.
Needless to say, editorial independence should not be affected by corporate or commercial interests.
Sponsorships
As for sponsorships, it is the DCO’s opinion that information about sponsorships should be given at the beginning of the programme or after – and not during the programme as suggested in the proposal. The sponsor should be identified by means of name or logo. Referring to a product range or services should only take place in so far that its purpose is to identify the sponsor because the display of name and/or logo will not fulfill this requirement.
The right to sponsor a programme should, in the opinion of the DCO, not be extended to producers and manufacturers of tobacco, alcohol or medical drugs.
To prohibit features about a programme sponsor, his products and/or services in the actual programme is also a wish of the DCO’s in that this kind of programme makes it difficult to distinguish between commercial and editorial content and deteriorates the level of consumer protection.
Neither children’s programmes nor films intended for children should be sponsored.
Unhealthy Foodstuffs
The DCO holds that limitations should apply to the number of commercial messages that promotes crisps, sweets, soft drinks and other inferior products targeted at children and young people. This proposal for a limitation should be viewed in the light of the problem which the increasing number of obesed children and young people constitutes in society. Advertising for those kinds of foodstuffs incite their consumption of unhealthy foodstuffs and makes it even more difficult for them to break problematic eating habits which also endangers their health.