The purpose of section 4 is to ensure that the target group of any commercial message clearly recognises it for what it really is and is able to judge its contents accordingly. Another objective of the provision is therefore to contain covert advertising. Covert advertising is commercial communication which does not give itself away as such.
Violations of section 4 are punishable by fine unless more severe punishment is incurred under other legislation, cf. section 30(3). This means that disseminators of covert advertising who deliberately fail to present commercial communication as such may incur a penalty.
Children and young people as an age group which is particularly vulnerable when it comes to covert marketing activities.
See also the DCO guideline 'Children, Young People and Marketing Practices'.
What is meant by covert advertising
The section primarily evolves around advertising disguised as editorial copy in papers and magazines. Laudatory media coverage of a new car model resulting from an agreement between the journalist and the car producer rather than independent research constitutes a clear-cut example of covert advertising. The word ‘advertisement’ should appear clearly in close connection with the article so that readers are not left in doubt as to the article’s contents.
Yet the provision can be applied to all media, including the Internet, films and other objects of art. Section 4 on identification of commercial communication may be considered complied with if the roll-up titles appearing before or after the film clearly draws the viewer’s attention to the fact that product placement has or will take place.
It is up to the sender of the advertising message to decide how to disclose the commercial nature of its contents. However, the receiver should never be left in doubt as to the objective of the message.
Clear identification of commercial communication does not necessarily have to include a clear identification of the sender, the advertiser. However, it is nevertheless an obvious and practical piece of information to state, whether in name, via a logo or trademark.
Lack of information about the sender may however lead the receiver to fail to identify the commercial intent behind or believe the advertising to be information from a public authority. Depending on the circumstances, it may be considered a violation of section 4 of the Marketing Practices Act.
The responsibility for distributing commercial communication which is distinguishable as such rests with the trader who advertises his or her products or services. However, other traders, businesses, or ad agencies may incur liability as well; cf. the general rules on complicity set out in the Danish Penal Code.
Children and young people
Section 8 deals with the protection of children and young people. The requirements set out in section 4 on identification of commercial communication are tightened in the event that a violation of section 8 may also have taken place. This means that great care should be taken to display features with commercial intent straightforwardly and easily distinguishable as such.
As a basis, therefore, product placement does not belong in children’s films; product placement is inconsistent with the special care that business and trade is required to exercise in relation to this age group regardless of whether an agreement concerning promotional features in the film appears from the roll-up titles, cf. section 8 of the Marketing Practices Act.
Online games in which brands and products used as props appear regularly may therefore conflict with section 1 on good marketing practices and the new rules on children and young people and identification of commercial communication.
A game with obvious commercial intent is, on the other hand, lawful, if it appears on the business’ own website. Children and young people will know that the game or fun form part of a commercial message. Products, brands and logos which do not belong to the business must however not appear in games or plays on its website: third-party brands should not be employed to establish a commercial image in a game or the like. This would be case if i.e. a toy producer introduced a game featuring dolls dressed up in specific clothing brands or sipping a particular soda.