Ofcom has found Greater London station LBC 97.3FM in breach of Rule 10.2 after presenter Anna Raeburn read out a live advertisement. A listener believed the item was not clearly separated from the programme and was therefore confusing to listeners.
The advert, for OzKleen’s Bath Power was aired just after a travel bulletin, which was then followed by content promoting DAB Digital Radio.
Rule 10.2 of the Broadcasting Code (“the Code”) states:
[i][b]“Broadcasters must ensure that the advertising and programme elements of a service are kept separate.”[/b][/i]
LBC believed the advertisement was clearly separated from programming. It compared the matter to a previous complaint concerning the separation of programming and advertising, which had not been found in breach of the Code. However, the broadcaster acknowledged that the previous case had concerned an advertisement that had not followed a travel bulletin, but a programme trail for Nick Ferrari at Breakfast, which had ended with a station drop-in.
LBC confirmed that it was station policy to play a full station ‘ident’ as it returned to programming at the end of an advertising break but not when leaving editorial and entering a break.
The station also confirmed that, in the current case, the promotion of DAB, featured after the live presenter-read advertisement, was also an advertisement, not editorial.
The broadcaster also believed that there was a “substantive difference in style” used by the presenter on the one hand in the programme and on the other hand in the advertisement. LBC claimed that in her programme the presenter drew from real life and talked about herself, while, “in this advertising material she did not endorse the product…”. It added that the advertisement was “portrayed in isolation, not in response to a question on an ‘agony’ style show.”
Broadcast output is defined either as editorial (programming) or advertising. It is a requirement of the Code, for the purposes of transparency, that these must be clearly separated.
Ofcom noted that the presenter’s show featured a travel bulletin followed by a very short three-note ‘sting’, before the full commercial break. However, in Ofcom’s opinion this ‘sting’ would have simply indicated to listeners that the travel bulletin had finished.
Before the presenter introduced the travel bulletin, she stopped talking to callers and expressed her own opinion, citing a listener’s written contribution that supported it. When she read the advertisement immediately after the travel bulletin, her conversational style appeared to be very similar to the end of the preceding programming. Although travel bulletins are commonly featured in radio programmes, they are not always followed by advertising breaks.
The presenter-read advertisement was then followed by content promoting DAB digital radio. Again, it is not uncommon for DAB to be promoted in programming. Ofcom noted that this particular promotion was, in fact, an advertisement, not editorial. However, it promoted digital radio sets generically, without reference to any specific products and it also ended by referring listeners to the LBC website, “for more on DAB” — it was therefore possible that listeners may have understood this to have been editorial.
Ofcom did not therefore believe listeners could be certain that editorial had ceased until after the DAB content had finished and the subsequent advertisements began.
Ofcom acknowledged that it was LBC ’s policy not to use a station ‘ident’ before an advertising break. However, in the previous case (which was found not to be in breach of the Code), the drop-in used at the end of the programme trail provided sufficient separation from a presenter-read advertisement, as the presenter’s style was markedly different to that used in his programme and programme trails are also commonly placed next to advertising breaks. Ofcom would normally advise that presenter-read advertisements be placed in the middle of clear commercial breaks, to ensure their adequate separation from programming. However, the circumstances in the previous case had achieved such separation by other means.
Given that the programming ran seamlessly from the travel bulletin to the presenter-read advertisement, in the style of the programming, and then into what could have appeared to be editorial references to DAB, it was likely that listeners would not have been aware where the editorial ended and the commercial material started. The way in which the presenter-read advertisement was incorporated into the station’s output therefore breached Rule 10.2 of the Code.
The original decision to find this programme in breach was appealed by the broadcaster, leading to a review. This finding is the result of that review.
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