Slovakia

[SK] Non-compliance with Product Placement Identification Requirement

IRIS 2013-5:1/39

Juraj Polak

Radio and Television of Slovakia (PSB)

On 15 January 2013, the Council for Broadcasting and Retransmission of the Slovak Republic (“CBR”) imposed a fine of EUR 1,500 on the major commercial broadcaster for the failure to inform the public about the existence of product placement in its programme and for giving undue prominence to the product in question.

The programme was a reality show taking place in a bar. Even though the bar was an operating business, it was built solely for the purpose of producing the reality show. The bar contained many products with commercial logos visible. Since this programme was under the exclusive editorial control of the broadcaster, it was considered by the CBR that this was no case of incidental display of commercial trade marks.

The CBR therefore began a legal investigation and queried the broadcaster as to whether any payments had been made in connection with these products or whether products had been provided free of charge. However, the broadcaster did not provide any information to the CBR.

The CBR refrained from imposing charges in respect of seven out of eight products, reasoning that there is no clear evidence that references made to these products fulfilled the definition of product placement, due to reasonable doubts about the existence of remuneration. All of the products were items that naturally occur in the given environment (beer tap, glasses, menus, coffeemaker etc.). The CBR stated that at the current stage it could not be ruled out that the broadcaster obtained these items itself and included them in the programme with the intention of increasing the credibility of the appearance of a real bar. References to these products also did not support the idea of commercial “placement” since these products were in no case shown in a prominent way (all references were visual and the products were displayed in the background only). With regard to these products, the CBR maintained its “in dubio pro reo” approach already adopted in previous cases (host of the show wearing a t-shirt with a trade mark, open notebook with visible logo in its back) when it also did not impose fines in cases when the broadcaster denied or did not confirm the product placement in the programme and the products were not displayed in a clearly promotional manner.

The CBR instead did impose the sanction due to the references made to the last product - a bottle of champagne. The programme contained two zoomed shots aimed directly at the label of the bottle rendering the trade mark clearly visible. The CBR stated that clearly promotional references to the product are references that cannot possibly serve any other than a promotional interest. Such references are always made in return for payment or some other similar consideration. The actual form of this consideration - cash payment, barter deals, written contracts or gentleman’s agreements - is irrelevant (see IRIS 2013-1:36). The CBR also stated that the programme gave undue prominence to the product in question. When assessing the “prominence” of the product it is necessary to review whether specific shots of the product may serve any reasonable editorial purpose. When there is no other logical explanation for featuring a product in the given way it means that the intention is to promote this product. The CBR emphasised that merely having a bottle of champagne in the given scene (champagne in a hot tub) is editorially understandable within the concept of the show. However, there is no editorial reason for the detailed shot of the label while the champagne is being poured into the glasses.

The broadcaster paid the fine on 26 March 2013 and did not appeal against the decision.