knowledge 27 September 2024 |

Proposed Changes to Broadcasting Codes and Rules

The more noteworthy proposed changes include new restrictions regarding comparative commercial communications with environmental or sustainability themes (particularly in the context of ‘greenwashing’) and a lowering of the threshold for what will be considered to be ‘offensive’ in the content prohibited offensive commercial communications.

Background to proposed changes

The primary purpose of the proposed changes to the Broadcasting Codes and Rules is to give effect to Ireland’s obligations under the revised AVMS Directive.

The Audiovisual Media Services (AVMS) Directive aims to coordinate national legislation in the EU for the regulation of broadcasters, audiovisual on-demand services and video-sharing platforms. In particular, the AVMS Directive provides for minimum standards and obligations that media service providers must adhere to, including in relation to child safety, the accessibility of services, and the prohibition of content that incites hatred.  

Coimisiún na Meán has published new versions of the following Broadcasting Codes and Rules for public consultation with a view to addressing changes made to the AVMS Directive:

• General Commercial Communications Code – This Code sets out rules for broadcasters on commercial communications, including advertisements, sponsorships, and product placement;
• Children’s Commercial Communications Code – This Code sets out additional rules for commercial communications directed at children;
• Code of Programme Standards – This Code sets out the principles which apply to editorial content in order to minimise harm or undue offence;
• Rules on Advertising and Teleshopping – These Rules set limits on the level of advertising and teleshopping that broadcasters may have as part of their services;
• Code of Fairness, Objectivity and Impartiality in News and Current Affairs – This Code sets out principles for broadcasters to apply in order to achieve fairness, objectivity, and impartiality in news and current affairs coverage; and
• Short News Reporting Code – This Code allows for short news extracts of events broadcast that are of interest to the public to be used by other broadcasters for the purposes of news reporting.

Noteworthy proposed changes to the General Commercial Communications Code

The following proposed changes to the General Commercial Communications Code are worth highlighting.

1. Terms relating to the environment or sustainability

Section 14.4 of the revised General Code includes the following new provision in relation to comparative commercial communications with environmental or sustainability themes:

This new wording reflects the increased focus by regulators on so-called ‘greenwashing’ by advertisers, i.e. the use of misleading and false claims made by organisations regarding their sustainability or pro-environmentalism credentials.

Advertisers will need to be careful to ensure that any ‘green claims’ in future marketing communications can withstand scrutiny e.g. by being able to substantiate such claims with objective and verifiable evidence.

2. Lower threshold for causing offence

The current version of the General Code provides that commercial communications “shall not prejudice respect for human dignity, cause serious or widespread offence, cause harm or encourage harmful behaviour”.

It is proposed to revise the General Code to reflect the introduction of the concept of “undue offence” in the Broadcasting Act 2009 (pursuant to which the General Code is adopted and enforced) by including a specific obligation on broadcasters to ensure that commercial communications do not include “include anything which may reasonably be regarded as causing harm or undue offence…”.

The revised General Code does not define “undue offence”, however, it is worth noting that the appendix to the revised Code of Programme Standards includes a non-exhaustive list of considerations for broadcasters to have regard to when assessing whether particular content may cause “undue offence”. These include:

• contextual factors such as editorial justification and the public interest;
• the likelihood of the content causing serious offence to an individual or protected group under Article 21 of the European Union Charter of Fundamental Rights; and
• the likelihood of the content causing widespread offence.

As a matter of literal interpretation, the proposed change will significantly lower the threshold for communications that may be considered to be offensive, i.e. from ‘serious and widespread offence’ to ‘undue offence’. If this wording is adopted, it remains to be seen whether this may result in a noticeable change in approach to the consideration of whether edgy advertisements cross the line of being so ‘offensive’ as to be contrary to the General Code.

What’s next?

The submission period for the consultation runs until 3 October 2024. Details in relation to making a submission are set out in Chapter 4 of the Consultation Document (available here).

Once finalised, broadcasters and advertisers should review the new versions of the Broadcasting Codes and Rules to ensure compliance with the latest changes, particularly in light of Coimisiún na Meán’s broad enforcement powers under the Broadcasting Act 2009.