Branded content, product placement and the integration of other commercial references into editorial programming is becoming increasingly popular. With the clamp down from regulators on 'native advertising', brands are looking at ways in which they can legitimately gain exposure for their products within engaging content that people are actually watching.
In the UK, brand integration in this way is possible, but there are complex rules governing commercial references in programmes. (The rules also differ subtly for traditional linear licensed broadcasters, and other online and streaming platforms regulated in the UK under the 'ODPS Rules'). Ofcom, the UK's communications regulator, enforces these rules, but there is relatively limited guidance, and few decisions on the topic. The last significant one, back in 2018, involved the unduly prominent commercial reference of a Rolex countdown watch during the 2016 Singapore Grand Prix broadcast (you can see what we wrote about here). Given the scarcity of official comment on the topic, this recent decision from Ofcom is worth noting.
The facts
Ofcom's decision, published on 20th January 2025, related to the live broadcast of a rugby match between New Zealand and Argentina in August 2024. The match was aired on Sky Sports Main Event, a service for which Sky UK holds the license. The broadcast included some promotional mentions of TAB New Zealand's gambling services, raising concerns about whether it met broadcasting standards. Let's break down what Ofcom found and decided.
The Issue
During the live broadcast, former New Zealand rugby player Israel Dagg made promotional references to TAB's gambling services. He stated "...live betting that is available for you on the TAB app" and further included specific odds and even encouraged viewers to use the TAB app for live betting.
While TAB was clearly not targeting UK viewers, this sort of prominent promotional call to action is not permitted.
Ofcom's Concerns
Ofcom identified some potential breaches of the Broadcasting Code, specifically:
Rule 9.4: Prohibits the promotion of products, services, and trademarks in programming.
Rule 9.5: Ensures no undue prominence is given to products, services, or trademarks without editorial justification.
Note that the product placement rules were considered but swiftly dismissed given that Sky UK nor any related party received any payment in respect of the reference to TAB. Sky UK had simply acquired the programmer, and it was produced outside the UK, so those rules didn't bite. It's worth noting, however, that the rules for broadcasters, when they do apply, prohibit product placement of gambling products.
Sky's Response
Sky UK's defence covered several reasonable considerations:
Live Feed: The broadcast was a live feed, and Sky UK had no control over the content.
No Commercial Arrangements: Sky UK had no relationship with TAB, and was not aware of any contracts or agreements between Sky Sport NZ and TAB regarding the inclusion of the references.
Human Error: The promotional content was aired due to an oversight in the live broadcasting environment. (Sky UK explained that it checks the running order in advance and normally has processes in place to drop the feed during any problematic content, but this segment was missed on this occasion).
Mitigation Measures: Sky UK emphasised the challenges of live event coverage, especially where the UK broadcaster is not acting as the host broadcaster or provider of the feed. It explained that content is normally made to the regulatory standards of the host territory (here New Zealand). Sky UK also confirmed that the offending sequence was removed from repeat broadcasts.
Ofcom's Decision
Ofcom acknowledged the challenges Sky UK faced with live international broadcasts but highlighted a few key points, particularly that it was the UK broadcaster's responsibility to ensure compliance with the Broadcasting Code, regardless of the content's origin.
The references made to TAB during the broadcast were deemed promotional and unduly prominent, lacking editorial justification. However, Ofcom considered the live nature of the broadcast and Sky's mitigation efforts to prevent recurrence.
Key Takeaways for Broadcasters
Whilst Ofcom decided that the issue was resolved in this instance, its decision underscores the importance of keeping advertising and editorial content separate in broadcasts. Broadcasters need to stay alert, especially during live events, to ensure they follow the rules and protect viewers from potentially harmful content.
Our thoughts
The rules governing commercial references in programmes are intricate and multifaceted. This particular case related to a live event shown on traditional linear TV, but with so much content now being consumed on platforms like Netflix and Amazon Prime, including live sports, the rules governing those platforms need to be understood too. There is scope for brands to exploit the slightly more relaxed rules for the latter – for example product placement of gambling products is not prohibited for on demand platforms regulated in the UK.
Further, while product placement is still subject to some rules (set out in the ODPS Rules), Rule 9.4 and 9.5 of the Broadcasting Code (quoted above, which provide more general prohibitions) don't apply to on demand platforms (except the BBC's iPlayer). As such, this decision may have been very different if the match was shown on a different platform. And things may change again in respect of product placement for non-UK 'Tier 1' platforms when the draft "Video on Demand Code" is launched by Ofcom (the final version of which is expected to be published this summer) – watch this space!
Want to understand more?
We will be unraveling all these complexities and exploring the opportunities in our upcoming webinar, Branded Content – Navigating the regulatory regime and other pitfalls. Sign up here.
