Germany

[DE] DLM Adopts Draft Advertising Guidelines

IRIS 2000-3:1/10

Karina Griese

Institute of European Media Law (EMR), Saarbrücken/Brussels

On 21 February 2000, the Direktorenkonferenz der Landesmedienanstalten (the Conference of Directors of the Regional Media Authorities - DLM) adopted a draft set of common guidelines on advertising, the separation of advertising and programme material and television sponsorship. The guidelines transpose the advertising regulations of the "Television without Frontiers" Directive (97/36/EC), incorporated in the 4.Rundfunkstaatsvertrag (the Fourth Agreement between Federal States on Broadcasting - RfStV) and put in concrete form the demands that the Agreement makes on private broadcasters in terms of advertising and sponsorship. They will enter into force on 1 April 2000, along with the new Agreement on Broadcasting.

The guidelines contain a detailed definition of advertising. They state that the promotion of other broadcasters, their programmes or their services constitutes advertising and should therefore count as part of the maximum advertising time allowed. This is also the case if the broadcaster referred to is a member of a so-called family of broadcasters. Only references to a broadcaster's own programmes or material accompanying individual programmes do not count as advertising.

With the new technique of split-screen advertising, the advertisement must be separated from the main programme by clear visual means, and labelled as such. The guidelines suggest that the distinction is particularly clear if the advertising window is separated from the main programme by the word "advertising" throughout its duration.

As far as virtual advertising is concerned, it is sufficient for viewers to be informed at the beginning and end of a programme, either optically or acoustically, that advertisements found at the site of the broadcast have been artificially modified on the screen. Moreover, virtual advertising may only be used to replace advertisements that already appear at the site of the broadcast.

The definition of surreptitious advertising is to be narrower in future. Until now, forbidden surreptitious advertising has been understood as being the mention or portrayal of goods, for example, "for the purposes of advertising". From now on, the "deliberate" use of goods for the purposes of advertising, ie consciously and intentionally showing goods in order to market them, is to be prohibited.

The guidelines also stipulate the exceptional circumstances in which the minimum 20-minute gap between advertising blocks may be disregarded. Exceptions may be made if, for reasons of dramatic coherence, elements of the plot of a programme should not be interrupted.

Unlike earlier drafts, the guidelines do not specify when the calculation of advertising time should begin. The wording of §45.2 of the Agreement between Federal States on Broadcasting ("The amount of spot advertising within a given one-hour period...") suggests that calculation should begin on the hour. Although they did not stipulate this in the guidelines, the Regional Media Authorities agreed that this should be dealt with flexibly, as before, in spite of the clear wording of the RfStV. Consequently, the sixty-minute period need not begin on the hour.