Video-on-demand (VOD) advertising

From 1 September 2010, the way we regulate advertising on TV-like video-on-demand (VOD) services will be changing. We have been designated by Ofcom as the co-regulator for advertising appearing on VOD services.

A new Appendix has been included in the British Code of Advertising, Sales Promotion and Direct Marketing (the CAP Code), which will apply to aspects of advertisements on VOD services that are subject to statutory regulation under the Communications Act 2003 (as amended). This Appendix contains rules reflecting the new statutory requirements.

The Appendix doesn’t introduce new requirements for VOD advertising: VOD providers are already required, under law, to comply with them and the Appendix doesn’t go beyond the rules that are already in the CAP Code. Adding these requirements to an Appendix of the CAP Code means that we can take action on suspected breaches against the VOD service provider and without the need to refer to Ofcom for legal action.

The changes don’t impact on your ability to make a complaint about an ad you’ve seen in a VOD service – if anything it makes it simpler because we will be the only regulator dealing with complaints. If you wish to complain about an ad you can contact us in the usual way.

Q&A

Why has the CAP Code changed?

The rules in the new Appendix directly mirror legal requirements for video-on-demand advertising that have been in place since December 2009. These legal requirements stem from the Audiovisual Media Service Directive and have been incorporated into UK law as amendments to the Communications Act 2003. Ofcom is the body responsible for ensuring compliance with the Act.

As the ASA is the independent UK regulator for advertisements, Ofcom has designated us as the appropriate regulatory authority to deal with complaints about VOD advertising in the first instance. Ofcom will act as a backstop regulator, which means that we are able to refer cases to Ofcom if advertising continues to appear despite an ASA adjudication against it.

Ofcom is also able to take immediate action on serious breaches of the rules, for instance, by using its legal powers to order the immediate suspension of an advertisement.

Who is affected?

Not all VOD advertising is subject to the new Appendix. Only advertisements on services that are subject to statutory regulation under the Communications Act 2003 are affected. These services are defined in paragraph 368A of the Act and providers of such services are legally required to notify the Association for Television on Demand (ATVOD) that they are operating. So the Appendix applies only to advertisements on VOD services that are regulated by ATVOD. For information about ATVOD, including a list of regulated services, see www.atVOD.co.uk.

Under the Communications Act, it is the media service provider that bears the responsibility for ensuring the content it carries complies with the Act. So the new Appendix applies to the VOD service provider. This is different from the rest of the rules in the CAP Code, which apply to the marketer.

What is new?

In practice, very little has changed: advertisements on ATVOD-regulated services are already subject to these requirements under the law and the ASA already considers complaints about VOD advertisements under the CAP Code.

Compliance with the existing CAP Code should ensure compliance with the Appendix: the wording is slightly different for legal reasons, but the effect is the same.

What has changed is that we are now able to consider all aspects of VOD advertising, whether the relevant rules derive from the self-regulatory CAP Code or from the law. Previously, we referred complaints that might fall under the law to Ofcom. This change will make it easier for viewers, who can be confident that we are the right body to deal with complaints about advertising in all media, regardless of the underlying legal framework. Viewers can complain to us in the usual way: you don’t need to specify whether you are complaining about an Appendix rule or a main Code provision.

The Appendix rules can be found below and the CAP Code can be viewed on the CAP website

Are the Appendix rules the only rules for VOD advertisements?

No. VOD advertising will continue to be subject to the main CAP Code. As with all other non-broadcast marketing communications, the advertiser bears the primary responsibility for ensuring compliance with the CAP Code. The Appendix, however, contains additional rules directly derived from the Act for which the provider of the media service bears the primary responsibility.

What happens if the ASA receives a complaint about your ad or an ad that’s appeared on your service?

If we investigate complaints about an ad on an ATVOD-regulated service, we will contact the marketer about potential breaches of the main CAP Code rules and inform them if we are also contacting the service provider about potential breaches of the Appendix rules.

Conversely, we will contact the service provider about potential breaches of Appendix rules, and inform the marketer that we have done so.

We will also continue to contact service providers about potential breaches of CAP rules relating to taste and decency or social responsibility. Although service providers are not legally responsible for compliance with these rules, we routinely contact media owners when considering these aspects of the CAP Code to ensure we take account of editorial context when considering such complaints.

What sanctions does the ASA have?

The usual ASA sanctions will apply such as the requirement to have ads that are found in breach of the Code removed or amended, and the publication of a ruling.

However, our designation by Ofcom means that we have access to a new sanction. Failure to comply with the rules in the VOD Appendix may result in the matter being referred to Ofcom with a view to Ofcom considering whether the media service provider has contravened the relevant requirements of the Act.

What help and guidance is available to marketers and VOD service providers?

As with any non-broadcast marketing communication, the CAP Copy Advice Team provides fast, free and confidential advice on the likely compliance of advertisements under the CAP Code. The Copy Advice Team gives advice on both the main CAP Code rules and the VOD Appendix rules. Advertisers and VOD providers should also sign up to CAP Services to access all the available guidance.

Clearcast, the broadcast television advertisements pre-clearance body, will also give advice on VOD ads.

What do the new rules say?

The rules, found in the VOD Annex to the CAP Code, are:

30.1 Advertising must be readily recognisable as such.

30.2 Advertising must not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

30.3 Advertising must not prejudice respect for human dignity.

30.4 Advertising must not contain any material likely to incite hatred based on race, sex, religion or nationality.

30.5 Advertising must not include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation.

30.6 Advertising must not encourage behaviour prejudicial to health or safety.

30.7 Advertising must not encourage behaviour grossly prejudicial to the protection of the environment.

30.8 Advertising of the following products is prohibited:

30.8.1 cigarettes or other tobacco products

30.8.2 any prescription-only medicine.

30.9 Advertising for alcoholic drinks is prohibited unless

30.9.1 it is not aimed at persons under the age of eighteen, and

30.9.2 it does not encourage excessive consumption of such drinks.

30.10 Advertising must not cause physical or moral detriment to persons under the age of eighteen.

30.11 If advertising contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it.

30.12 Advertising must not directly exhort persons under the age of eighteen to purchase or rent goods or services in a manner which exploits their inexperience or credulity.

30.13 Advertising must not directly encourage persons under the age of eighteen to persuade their parents or others to purchase or rent goods or services.