Petko Angelov and Yoanna Ivanova - attorneys at Gugushev & Partners Law Office were invited to publish articles in specialized in the field of media law Media Law International Edition. The publication is focused on the Surreptitious Commercial Communications and reviews the requirements to which the commercial communications (messages) must abide, pursuant to the provisions of the Radio and Television Act, in order for the audience to clearly recognize the commercial communications, considering that the surreptitious commercial messages are prohibited by law. The article is based on the interpretation of the meaning of the term “commercial message”, as described by the Regulator – the Council for Electronic Media (CEM), in accordance with the adopted by the Council methodology and the common understanding that the Regulator allows product placement only by observing the rules pointed out in the Radio and Television Act with regard to the audiovisual commercial messages. Gugushev & Partners Law Office is one of the recommended by Media Law International law offices for 2015.

 

The full article:

The surreptitious commercial communications and product placement as a form of commercial communication under the interpretation of the Council of Electronic Media (CEM), governing rules for the Bulgarian National Television (BNT) and Bulgarian National Radio (BNR)

 

Pursuant to article, 75 from the Radio and Television Act (RTA) commercial communications must be clearly recognisable as such. Surreptitious commercial communications shall be prohibited. Pursuant to article 75, para 2 from the RTA, "surreptitious commercial communication" means the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes, when such representation is intended by the media service provider to serve as advertising and might mislead the public as to its nature, in particular if it is done in return for payment or for similar consideration. Producers of goods and providers of services may not exercise influence on editorial content. Commercial communications shall not use subliminal techniques. "Subliminal techniques" means indirect methods, which are not identified as commercial communications and are not recognized by the audience as such, but may elicit a subconscious mental reaction and produce a predisposition to the presented goods and services in the audience.

Commercial communications must not:

  • prejudice human dignity;
  • include or promote any discrimination based on such grounds as sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
  • encourage behaviour prejudicial to health or safety;
  • encourage behaviour grossly prejudicial to the protection of the environment.

All forms of commercial communications for cigarettes and other tobacco products shall be prohibited.

Commercial communications for alcoholic beverages must not be aimed specifically at children and may not encourage immoderate consumption of such beverages.

Commercial communications for medicinal products available only on prescription or for medical treatment available only on prescription shall be prohibited, with the exception of the cases under Article 248 of the Medicinal Products in Human Medicine Act.

Commercial communications must not:

  • pose a risk of physical or moral detriment to children;
  • directly exhort children to buy or hire a product or service by exploiting their inexperience or credulity;
  • encourage children to persuade their parents or others to purchase the goods or services being advertised;
  • exploit the special trust children place in their parents, teachers or other persons;
  • unreasonably show children in dangerous situations.

Audio-visual commercial messages and commercial messages in radio services must not be aired at a sound volume, which would be higher than the sound volume of the remaining part of the programme.

 

Having regard to 

1) negative effects of the surreptitious audiovisual commercial messages to consumers, which are prohibited by Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) and

2) frequent cases of mixing of surreptitious commercial advertising and placement of products, goods, services, and brands and therefore to be protected the interests of the users of the services is necessary to adopt clear criteria for the application of the law to these forms and practices,

the Council for Electronic Media (Council) adopted Media Methodological Guidelines based on: 

  • the provisions of Audiovisual Media Services Directive 
  • the provisions of the Radio and Television Act on commercial electronic messages, in particular art. 73, para. 1 and 2, art. 74, para. 1 and 4, art. 75, art. 83, art. 84; 
  • the practice of the European regulators regarding the hidden commercial communication and product placement in implementing Audiovisual Media Services Directive; 
  • the practice of the Court of Justice of the EU in relation to product placement (C -52/10) 

In relation to the  surreptitious commercial messages the Council adopted the following guidelines: 

  1. Remuneration or other such payment is not a mandatory element, which must be established in order to have a concealed commercial communication. 
  1. The mentioning of goods, services, name, brand/trademark or activities of a producer of goods or service provider that has an only informational purpose, does not contain the characteristics of a concealed commercial communication and provided that the omission may lead the consumers in false believe is not contrary to the provisions of the law and is permissible. 
  1. 3. The presentation with the relevant media resources of interlocutors, guests and other participants in the programs, which has only informational purposes and contributes for the quality of the program/media service in the interest of the audience, does not contradicts to the provisions of the law and the practice is permissible.  In these cases, it is allowable the verbal or written representation of the names of the participants, coupled with their official positions, incl.  names of legal entities and their expert competence (without graphical representation of the brand/trademark). 
  1. The presence over the clothing of the interlocutors, guests and other external participants in the transmission of trademark, usual for the indication of the manufacturer of the co-respondent clothing, as well as of sponsor`s trademarks of sportsmen over sport- clothing, is not contrary to the provisions of the law and is permissible practice. 

With respect to the positioning of the products the Council adopted the following guidelines:

In order to implement the strict regulatory requirements in terms of product placement the Council will follow in its regulatory practice the following requirements: 

  1. It is not allowed the content of the transmissions and in the programs- the arrangement of the transmissions in the program scheme to be influenced in a manner affecting the responsibility and the editorial independence of the media service provider. Itself the media service provider is obliged to provide transparent measures to guarantee this responsibility, preventing the possibility for hidden advertising and hidden product placement 
  1. It is not allowed the product placement to promote direct purchase or rental of goods and services and more specifically advertising explicitly the particular goods or services. 
  1. Products, services and brands/trademarks may be represented with certain limitations and without undue emphasis. In the cases when in connection with the theme of the transmission and the development of a particular storyline, there is the assumption that the placed product could get unduly accentuation, the supplier of audio-visual media services assures additional graphic symbol in order to inform the spectator that there is an overlap of the theme or the storyline with the placed product. 
  1. The provision of graphic symbol which to inform for the presense of commercial message at probability to reach undue emphasis of a product, should appear at the beginning of the correspondent theme or other storyline and to lie at least 5 sek. 
  1. It is not necessary a graphic symbol which to inform about the presence of commercial message to be assured, if in relation with the realization of product placement, at objective analyses, there is no ground to suppose that there is probability to reach baseless emphasis of the correspondent product, servise or brand/trademark. 

In resume, we could reckon that there is no obstacle to the electronic Media to indicate brands/trademarks as a part of the information content if it is important for the public interest and influences over substantial number of spectators. The effect of regulation implemented with the Guidelines is more freedom for the Medias to announce the company names and brands. However, the journalists must decide by themselves which event has newsworthiness and it is important for the public while announcing the name of a company, brand, position of a person invited in a TV transmission or participating in a newscast, or report under a question or a topic directly related to his work, which is important for the public interest.