BAI General Commercial Communications Code
The BAI today launched its revised General Commercial Communications Code, “which sets out the rules that Irish radio and television stations must comply with when it comes to airing advertising, sponsorship, product placement and other forms of commercial communications.” (emphasis added)
The Chief Executive of the BAI, Michael O’Keeffe said: “The aim of the revised Code is to give the public the confidence that commercial communications on television and radio are legal, decent, honest, truthful, and protect their interests … “. While these aims as stated dovetail somewhat with those of the Family and Media Association (FMA) (see left-hand column), it remains to be seen if either the Code itself or the Compliance Committee of the BAI will truly serve these objectives, in the future. The Code is due to come into effect on 1st June of this year.
The following is the text of FMA’s Submission for the public consultation phase of the revised Code. Articles about the Draft Code can be found in the November 2016 edition of FMA’s Media Report publication. …
Submission of the Family and Media Association (FMA) regarding the BAI Draft General Commercial Communications Code
Q: What are your views on the Introduction to the Code?
“To ensure that the public can be confident that commercial communications are legal, honest, truthful, decent and protect the interests of the audience”
The first objective mentions protecting “the interests of the audience”. While this is a positive aspiration, it does not go far enough. It is important to protect the interests of all the people, not merely those who might constitute the audience at any particular time.
As the Family and Media Association (FMA) has pointed out in previous submissions to the BAI and its predecessors, some terms or expressions such as “decent” and (now) “protect the interests of the audience” may not be sufficiently well defined or well understood, in themselves. It is our belief that this has given rise to some arbitrary and inconsistent decisions over the years where similar codes are concerned.
We also propose, as we have done previously, that the objectives should include the requirement that commercial communications should be neither offensive nor harmful, where the term ‘offensive’ is understood, not as something subjective, shifting and arbitrary in meaning, but as being grounded in the truth, “in the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred” – The Constitution of Ireland (Bunreacht Na hÉireann).
It is, in our opinion, also important that commercial communications not undermine or be otherwise in conflict with the real purpose of communications which is truth, beauty and charity. This requirement should also be included in the Code’s objectives.
“The intention is to make it as easy as possible to have your complaint considered.”
In reality, the process of making a complaint, from the point of view of the complainant and the public, has become more arduous, not less arduous, in recent years and there is, apparently, no attempt to address this hypocrisy in the latest version of this Code.
Whereas, in the past, it was once possible to make a complaint directly to the BAI or its predecessors, now a complaint must, first, be made to the broadcaster who is then given a substantial period of time to respond. In practice, the broadcaster regularly does not even bother to reply within this timeframe (stated in its own code of practice) other than with a brief, often automated, message to the effect that the complaint has been received. RTÉ has been particularly weak here. Furthermore, there appears to be no penalty for the broadcaster’s failure, so that this ‘going through the motions’ serves only to intimidate and ultimately ‘shake off’ the hapless complainant.
Whether the broadcaster does respond within the allowed timeframe (confusingly, this varies between broadcaster) or not, the complaint must, either way, be submitted anew to the BAI. This second complaint is supposed to be responded to, again, by the broadcaster so that, in theory, each complaint and response is not one complaint and response but 2 complaints and responses. After this, the complainant must then contact the BAI again to say that he or she wishes to proceed, before the complaint is hopefully heard. Even at this stage, the complaint will not come before the full compliance committee but before an executive subcommittee who may decide not to allow it to be heard by the full board.
We also note with concern a relatively new and worrying development where clerical staff whose authority to make a decision on these matters has no obvious basis in law or justice, intervene and sometimes offer what have the appearance of spurious, entirely invalid reasons for not submitting the complaint, even, to the executive subcommittee. The suspicion can only be fostered by such events that ideology is rearing its ugly head. How can a complainant have any confidence that his or her complaint is even understood much less taken seriously when it is open to being deflected from the compliance committee proper at so many stages along the way?
If this were not enough, to further complicate the process, from the point of view of the public, a complaint must first “refer to the broadcaster’s Code of Practice”. So a member of the public wishing to make a complaint must be familiar, not only with the relevant legislation and the relevant BAI code, but also with the individual broadcaster’s own code. This further adds to the daunting nature of the process as far as the complainant is concerned.
One must ask why there is even a need for a different code of practice for each broadcaster. Surely a single code (and a single timeframe for responding to complaints) that all must adhere to, in the same way, would be a more logical, more transparent way of doing things, and easier for the complainant generally. Appropriate publicised penalties for the broadcaster’s failures to respond would also be welcome.
From the above, it should be clear that there is an obvious unwieldiness to the system. In addition to the other problems mentioned, this unwieldiness increases the probability of clerical error. For example, FMA has received responses to complaints that it didn’t even make (but others clearly did!) and that’s not including the complaints which FMA did make but read like entirely different complaints when the BAI’s final judgment was published.
“How Complaints will be Assessed by the BAI
In circumstances where your complaint has not been responded to by the broadcaster or you are not satisfied with the response, you may refer your complaint to the BAI. Commercial communications shall be considered by the BAI in whole and in context with reference to:
- The matters identified in the complaint;
- The principles and rules in this Code;
- The provisions of the Broadcasting Act 2009;
- The provisions of the Audiovisual Media Services Directive 2010/13/EU; and
- The procedures, practices and policies of the BAI.
The BAI will not carry out a separate or independent assessment outside of the matters raised in the complaint.”
In the past, complaints have not been allowed to proceed because they were made on grounds which while not being referred to explicitly in the rules were explicitly referred to in other parts of the code. If the BAI wishes to be taken seriously about making a decision based on all of the above, then it must practice what it preaches and ensure that its staff have been properly briefed.
Finally, Because of the life-cycle of a commercial communication, and the damage that it can do in that time, the drawn out nature of the complaint process is, more often than not, too slow to be of any real help to the public. There isn’t much point in turning the steering wheel and applying the brakes some 6 months or even a year after being warned about a hazard on the road. Justice delayed is justice denied!
Q: What are your views on how the Code proposes to deal with product placement and sponsorship, in particular, how the concept of ‘significant value’ will be applied?
As we have stated before, it is our belief that product placement should not be allowed at all. It blurs the distinction between advertising and programming, thus, subtly, spreading the impression that the viewer is merely an object to be manipulated. Furthermore, it would seem to decrease the likelihood of broadcasters looking upon programming as a service putting it in conflict with the proposed principles. Those with a background in broadcasting are probably not best placed to make a judgment that product placement has been, in particular instances, or can be, in general, sufficiently well flagged, given their own experience with the medium, which heightens their sensitivity. On the other hand, children in particular find it difficult, if not impossible, to distinguish between normal programming and advertising content, in so far as such a distinction can really exist at all.
Q: What are your views on the General Definitions and Exclusions as presented?
“The following exclusions are not forms of commercial communication and are not required to comply with this Code: …
- Public service announcements and charity appeals broadcast free of charge.”
A ‘charity’ could come to represent a privileged class of advertiser having an approved ideology. If, in these circumstances, it is excluded from the forms of commercial communication that are required to comply with the Code, it would have an unfair advantage, acting ‘above the law’ and outside the rules in order to advance certain ideologies at the expense of others. This would be dangerous propaganda — a form of brainwashing. Such an exclusion would be a significant weak point which could subvert the Code.
Q: What are your views on the four principles in the draft Code?
Our comments on the Introduction can equally be applied to section on the principles of the Code. Please see above. Additionally, we welcome the retention of the reference to Human Dignity.
Q: Is there anything you disagree with or believe is missing from these principles?
Our comments on the Introduction regarding omissions can equally be applied to the section on the principles of the Code. Please see above. Additionally, the emphasis on “Protecting the Individual and Society” (Principle 3.1 in the current code) has been removed or given less prominence. This would appear to be an unnecessary backward step. On the other hand, we welcome the fact that the word “Truthful” has made its way into the title of one of the proposed principles, Principle 3.1.
Q: What are your views on the Rules for all Commercial Communications?
We propose a rule that ‘Commercial Communications shall not contain any scriptural quotations or allusions to religious ideas or events, particularly where their meaning is altered in order to promote a product, or such that they may have the perceived effect of undermining a moral or religious belief system’.
We welcome in particular Rule 4.1: “Surreptitious, subliminal and misleading commercial communications are prohibited.”
Q: What are your views on the rules pertaining to Split Screen, Interactive and Virtual Advertising Techniques?
This phrasing of this question seems a little more closed than it needs to be.
It is still our view that split screen advertising should not be allowed at all, primarily, because it leaves the impression that those who watch are merely objects-to-be-used, for monetary gain, which is in conflict with the real meaning of communication.
In practice, we believe it would be impossible to protect minors from entering into a harmful situation through the availability of interactive advertising (The Television Without Frontiers directive, for example, states that if and where interactive advertising is used, it must protect minors). We therefore believe that it should not be allowed.
We are opposed to the idea of virtual advertising for the same reasons that we are opposed to split screen advertising as it is another step along the way of turning viewers into unthinking uncritical objects-to-be-used, deceived and manipulated. It also, subtly, blurs the distinction between what is real and what is not. We also believe that special note should be taken of the implications for children who have not yet developed the cognitive capacities of adults which are needed to make distinctions between what is real and what is not real and, similarly, for those with psychotic illness.
Q: What are your views in relation to allowing reference to more than one product or service in a sponsorship announcement?
We would view such a move as a somewhat invasive backward step.
Q: What are your views in relation to changing the restriction in sponsorship announcements from ‘calls to action’ to ‘calls to purchase’?
We believe that there should be no change in the restrictions here.
Q: What are your views in relation to allowing reference to more than one product or service in a sponsorship announcement? (Re: Radio)
We would view such a move as a somewhat invasive backward step
Q: What are your views in relation to changing the restriction in sponsorship announcements from ‘calls to action’ to ‘calls to purchase’? (Re: Radio)
We believe that there should be no change in the restrictions here.
Q: What are your views on the rules in relation to product placement?
Our answer is that given for the section, General Definitions and Exclusions: As we have stated before, it is our belief that product placement should not be allowed at all. It blurs the distinction between advertising and programming, thus, subtly, spreading the impression that the viewer is merely an object to be manipulated. Furthermore, it would seem to decrease the likelihood of broadcasters looking upon programming as a service putting it in conflict with the proposed principles. Those with a background in broadcasting are probably not best placed to make a judgment that product placement has been, in particular instances, or can be, in general, sufficiently well flagged, given their own experience with the medium, which heightens their sensitivity. On the other hand, children in particular find it difficult, if not impossible, to distinguish between normal programming and advertising content, in so far as such a distinction can really exist at all.
Q: What are your views on the Gambling section of the draft Code?
Unlike, to some extent, the rules for alcohol, the rules for gambling do not appear to properly embrace an understanding of the scourge of gambling addiction. It may be useful to impose stricter rules on commercial communications for casino style gambling, for instance.
Q: What are your views on the Fortune Tellers, Psychic Services, etc., section of the draft Code?
We do not believe that commercial communications for “fortune tellers, psychic services etc.,” are acceptable even where the service has the appearance of being only for entertainment purposes. Such ‘services’ constitute far too high a risk to the vulnerable.
Q: What are your views on the Prohibited Commercial Communications section of the draft Code?
We believe that commercial communications for sex shops, ‘stripograms’, telephone sex lines, chat lines etc should be prohibited as they are to varying degrees incompatible with human dignity, one of the terms included in the title of Principle 2. Advertisements for dating services, in practice, also tend to offend against human dignity. Additionally, pornography is now widely accepted as being harmful (also included in the title of Principal 2) and this acceptance has a solid scientific and clinical base. Pornography is also deceitful, it is an implicit lie about the nature of the body and it cannot, of course, reasonably be described as decent (cf. the title of Principle 1).
More generally, products and services, including many which are described as psychological, medical, cosmetic, and others which exploit the vulnerable should not be allowed. The Code appears to have a disproportionate concern for physical threats to the body in contrast with the spiritual, psychological and moral threats to the mind and soul.
BAI General Commercial Communications Code
