Proposed ICASA Regulations to regulate radio & TV adverts
16/03/2009

The Independent Communications Authority of South Africa (Icasa) has given notice of its intention to promulgate regulations under the Electronic Communications and Transactions Act 34 of 2005 setting out the code of conduct, standards, practice and prohibitions for advertising, sponsorship and other forms of commercial promotion in radio and television broadcasting services.

Interested persons are to submit written representations by no later than 16h00 on Wednesday, 27 March 2009.

The proposed regulations seek to regulate the placement and duration of advertisements, including the rule that no more than 12 minutes per hour of advertising may be broadcast. The proposed regulations also stipulate that a maximum of two hours of infomercials will be allowed between 5h00 and 23h00, which is known as “the performance period”. Infomercials will not be allowed to be broadcast during children’s programmes or during prime time (the hours between 18h00 and 22h00 in the case of television broadcast, and 6h00 to 9h00 and 16h00 to 19h00 in the case of audio broadcasts).

Regulations relating to teleshopping and programme sponsorship are also proposed. As far as programme sponsorship is concerned, upon the request of Icasa, broadcasters will have to furnish copies of sponsorship contracts concluded by the broadcaster. Furthermore, any depiction of, or referral to, the name logo, product or service of a person who provides programme sponsorship to a broadcaster, must be subordinate to the content of the programme material to ensure that undue prominence is not given to that name, logo, product or service.

The proposed regulations also contain a Draft Supplementary Code of Practice on Advertising, Sponsorships and other forms of Commercial Promotion for radio and television broadcasting service licensees.

The intention of this section is to create a code which will supplement the ASA Code, with specific reference to the following:

• laying down detailed rules concerning content and extent of advertising, sponsorship and infomercials and other forms of commercial promotion in programme services;
• prohibiting surreptitious advertising and advertising and promotion of certain goods and services;
• providing clear guidance to broadcasters as to the standards to which commercial communications must adhere and providing them with a simple, flexible and comprehensive code that does not impede their right to communicate commercial messages; and
• providing clear guidance to the general public on the standards that they can expect from commercial communications on broadcasting services.

The regulations propose to set out standards and practices applicable to advertising by broadcasters, many of which are in line with standards already set out in the ASA Code. Principles which are in addition to those found in the ASA Code include the following:

• Advertisements must not promote, inter alia
:

o violent, aggressive or antisocial behaviour;
o fear, unhappiness or suffering;
o behaviour that threatens consumers’ safety and security in the home, at the workplace or in traffic.

• Hidden and misleading advertisements are prohibited.
• Advertisements using subliminal methods are misleading.

The regulations also propose certain standards applicable to on-air personalities, including that they must disclose the receipt of free merchandise or services if that service or merchandise is mentioned on air. It is also proposed that there will be some form of specific acknowledgment that a message is a paid commercial message when the message is integrated into the announcer’s “on-air banter”.

Standards applicable to product placement are also proposed and include that broadcasters must ensure that presenters and journalists do not accept commissions or give in to those seeking publicity for commercial purposes and that editorial favours are not given in return for far lesser discounts on advertisements.

Broadcasters will also have to signal the fact that product placement is taking place within a given locally produced programme and product placement within news and current affairs programming is prohibited.

While the Code of Advertising Practice of the Advertising Standards Authority of South Africa (“the ASA Code”) already makes provision for advertising relating to issues around children, the Icase Regulations seek to add to this. In addition to this, standards which are applicable to a broader group, namely “vulnerable people”, are also proposed. “Vulnerable people” will include children, but will also include senior citizens, people suffering from terminal illnesses, mental or acute physical impairment, refugees and people addicted to drugs or alcohol.

Further, certain forms of advertising applicable to public health considerations (eg tobacco, and prescription medicines) are sought to be prohibited.

In addition to complying with these proposed regulations, broadcasters must comply with. To the extent that there are inconsistencies with the ASA Code, the regulations propose that the ICASA regulations will prevail over the provisions of the ASA Code.

It is unclear from the Draft Regulations how they will actually be enforced on a practical level. The difficulties surrounding co-regulation (in other words, the concurrent use of the Icasa Code and the ASA Code) are not, we submit, adequately addressed and the proposed Code would also leave a gap in regulation, as it only refers to broadcast advertising. This may have the rather odd result that certain rules relating to say, advertising to children, apply to broadcast advertising but not to print advertising.
Lindie Serrurier
Senior Associate
lindie-s@adamsadams.co.za
Adams & Adams
16 March 2009