GV Lawyers would like to introduce to readers an article by our Lawyers Le Quang Vy and Le Thi Hong Nga titled “Advertising on national broadcast viewed from legal regulations to practical application” published in the Vietnam Lawyers Electronic Journal on 16 August 2021.
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(LSVN) – Advertising is no longer a strange term for consumers, especially for television audience. Currently, in order for advertising to “ingrain” into each consumer, each onlooker, businesses often put their products on television with continuous and dense frequency. This has led many viewers from the sense of being interested and looking forward to TV ads to the emotion of becoming “bored” and even “overwhelmed” with such TV ads.
Which laws govern television advertising?
The Law on Advertising 2012 defines advertising as the use of means to introduce the general public the products, goods and services for profit purposes; products and services with non-profit purposes; organizations and individuals trading in introduced products, goods and services, except for current news, social policies and personal information[1]. In addition, previously the Commercial Law 2005 also defined advertising in commercial activities, whereby commercial advertising is understood as trade promotion activities of traders to introduce customers the business activities in respect of their goods and services [2].
The Law on Advertising 2012 stipulates that advertising content must be honest, accurate, clear, and not cause damage to producers, traders and ad recipients [3]. For special goods, products and services such as cosmetics, food, food additives, medical equipment; medical examination and treatment services, etc., advertising contents must also meet the requirements specified in Decree 181/2013 dated 14 November 2013 of the Government.
Advertising can be conveyed to the recipient through many different advertising media, in which the press can be considered one of the quite popular channels used by businesses. According to the Press Law 2016, television is considered a type of television journalism. Therefore, the advertising on television is governed by Article 22 of the Law on Advertising 2012, notably the regulations on advertising duration, specifically:
– The duration of advertising must not exceed 10% of the total duration of a broadcast program per day of a broadcasting organization, except for the duration of advertising on channels and programs specialized in advertising.
– The duration of advertising on a pay TV channel must not exceed 5% of the total duration of a broadcast program per day of a broadcasting organization, except for channels and programs specialized in advertising.
– Advertising is not allowed in the following programs: news programs; live TV programs on special political events, celebrating major national holidays.
– Each feature film program must not be interrupted for advertising more than twice, each time not exceeding 05 minutes. Each entertainment program must not be interrupted to advertise more than four times, each time not exceeding 05 minutes.
In case of violation of the advertising duration as prescribed above, television stations will face an administrative fine of between VND50 and 100 million and be forced to remit the profits gained from the violation. (Articles 40.3 and 40.5 of Decree 38/2021 dated March 29, 2021 of the Government).
Referring to the law in the UK, the law related to television advertising is called Code on the Scheduling of television advertising, in which the duration of television advertising is managed under many different angles, not just counting on the total broadcasting time like Vietnamese law. Specifically, for television services provided in the UK, depending on the type of TV channel, there are different regulations on advertising duration (non-public service channels will not be allowed to broadcast advertising programs exceeding 12 minutes per hour of broadcasting, while public service channels will be allowed to broadcast advertising programs with a duration of no more than 7 minutes per hour of broadcast), at special time frames, advertising duration will be different (for example, for public service channels in the time frame from 18:00 to 23:00, the advertising duration will be increased to 8 minutes per broadcast hour). Depending on the length of the broadcast, each program allows a different number of times to be interrupted for advertising (for public service channels, programs with a duration of 45-54 minutes will be allowed to interrupt for ads twice, and programs with a duration of 55 -65 minutes will have three breaks for advertising…), the advertising break between programs is no more than 3 minutes 50 seconds for public service television channels, children’s programs with a broadcast duration of 30 minutes or less will not be allowed to interrupt for advertising[4]…
Attraction of television advertising
Currently, television is still one of the media channels that attracts a large audience compared to many other media and newspapers. Therefore, television has become an advertising medium used by many businesses and this is also a lucrative source of revenue for television stations.
Nowadays, the majority of consumers can access advertising in many different and diverse sources. For advertisements published in newspapers, readers have the right to see or not to see; for ads on websites, viewers can choose to the feature “skip” to not continue watching ads. However, for television advertising, the audience does not have that choice. This is also the advantage of advertising products on television. As in order to continue watching their favorite TV shows, TV viewers have to accept to watch ads reluctantly, which leads to many viewers becoming “bored” and “overeating” with their advertisement.
From its advantages as well as its strengths compared to other advertising means, in fact, there has been abuse of advertising from broadcasters as well as businesses. Especially at prime time broadcasts, taking advantage of the program appeal to the audience as well as the advantage of the prime time broadcast, television stations are taking advantage of the opportunity to increase the frequency of broadcasts and insert advertisements into broadcast programs. Catching up with that trend, businesses are not afraid to spend significant costs to be able to put their ads on television in prime time frames and of course, as a rule of thumb, this is also an opportunity for broadcasters to increase advertising fees, thereby increasing their own revenue.
So, both the broadcaster and businesses as well benefit from this fact, while the disadvantage falls on the audience, their potential customers inadvertently becoming the “suffering” side in the reckoning. For the said benefit, the audience should have been the subject “taken care of” by broadcasters and businesses.
Limitations of the enforcement mechanism
Advertising is an indispensable commercial activity in the market economy. The State always enables policies to encourage as well as protect the legitimate rights and interests of organizations and individuals in advertising activities. However, to balance the benefits between TV audience and advertisers and broadcasters is a difficult problem.
We already have the Law on Advertising as well as regulations on sanctions for violations in advertising activities in general and violations of advertising broadcast time on television channels in particular. However, the practical application seems to have many shortcomings because of the monitoring mechanism.
Indeed, no one can sit for hours in front of the television to check, “to meticulously reckon” the advertising broadcast time of the stations. And moreover, if there is a discovery, it seems impossible to establish evidence for the violation. Therefore, it is necessary to set up an inspection and supervision mechanism for the law to come to life. In fact, the regulation on limiting the amount of advertising time on television is not the choice of many other countries such as the United States, Australia, Singapore, Japan, Korea… These countries do not have regulations about advertising time restrictions. Instead, they choose different management models, mainly focusing on advertised products and services and advertising recipients.
In parallel with the legal corridor, it is thought that we also need to build a code of moral rules in advertising activities as moral advertising is one of the important criteria in building business images.
Amid the increasing boom of today’s media, the audience has more options to access information as well as entertainment programs, broadcasters should focus on highly improving program quality and contents; arrange advertising contents between programs in a reasonable way, and avoid any abuse.
After all, television stations cannot exist and television advertising is meaningless without any audience.
[1] Article 2.1 Law on Advertising 2012
[2] Article 102 of the Commercial Law 2005
[3] Article 19 of Law on Advertising 2012
[4] Code on the Scheduling of television advertising (https://www.ofcom.org.uk/__data/assets/pdf_file/0014/32162/COSTA-311220.pdf)
