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Regulating Branded Media

The regulatory and ethical issues raised by the convergence of content and advertising in a multichannel environment.

Branded Media: Ethics and Regulation

NMK seminar report from October 2001.

Panellists: Richard Adams, Stuart Nolan, Nick Fenner, Ian Kenny

Richard Adams, Strategic Technical Director, Incline Media

Britain's advertising industry is one of the most heavily regulated in the world, reflecting an underlying cultural suspicion that advertising and ethics are mutually exclusive. George Orwell once compared advertising to "the rattling of a stick inside a swill bucket", but even in these more commercial times it is still viewed by many as a necessary evil.

In his introduction to this NMK seminar on the ethics and regulation of brandcasting, Richard Adams referred to research demonstrating that advertising can be used to plant false memories in the minds of consumers. But if ads can exert that much influence, what should we make of the fact that distinctions between advertising and 'proper' content are becoming increasingly blurred?

From BMW films to the Hallmark Channel, Disney to the Pepsi Chart Show, consumer brands are increasingly turning to original content to get their messages across. But how far should we allow them to go?

Stuart Nolan, Writer and Technologist

Stuart Nolan began by proposing that the ethics of the media are absolutely central to how we understand the world today. Citing Manuel Castells, he suggested that the study of media is the philosophy of the information age, and so the importance of media ethics cannot be underestimated.

However, Stuart argued that the tendency for critical debate about television to focus on the battle between popular culture and intellectualism is misguided. TV, Stuart contends, is transmodern, and its primary function is to teach us.

Television is pre-modern, having evolved from the oral tradition of family, the workplace and church. It is modern, in that it is a product of an advanced capitalist system. And it is post-modern, a self-referential medium that mixes high art with low culture and increasingly looks to itself for subject matter. In the past, the family taught us about our selves, work taught us about our roles, and the church handled our souls. Now, the media performs all of these functions.

Even seemingly banal shows such as Temptation Island invariably take the form of morality plays, while the likes of Big Brother, dismissed by some as voyeuristic and sensationalist, has also been praised for its 'sheer humanity'.

In terms of regulation, we are now witnessing a shift from the 'effect theory' of television, in which TV is seen as being pushed out to defenseless masses who require protection from its adverse influence, to a user-centred model, in which the individual has responsibility for what they choose to watch.

Television is also being democratised in the sense that more stories are being told, increasing choice for viewers. Despite this, the power to choose what is broadcast in the first place remains in the hands of a select few.

Stuart raised the example of an Adbusters anti-consumer campaign that no network would broadcast, even though the organisation was prepared to pay the going rates. CBS claimed the ads were 'against the economic policy of the USA', yet Adbusters consider themselves to be an ethics-driven organisation. Clearly, there is a strong political dimension to the ethical debate.

The debate is partly about ownership, but intellectual property considerations may actually have damaging implications for the long-term prospects of creativity. Henry Jenkins at MIT has written about the 'Alice in Wonderland Digital Land Grab', arguing that if Lewis Carroll's tale was written today, any reinterpretation of the work by other authors would be prevented by IP laws for fear of 'brand dilution'. Society would be denied the many creative re-imaginings and explorations that the original Alice inspired.

This production culture controls the narratives we see in the media, TV is assessed primarily in terms of ratings, and a 'scoop' mentality prevents many stories from being explored fully.

Ugly values will never be adopted by brands, so there is a danger that the branding of media content will reduce the scope of debate, and prevent important stories from being told. For this reason, it is not desirable for all media to be dominated by brands - we still need other information channels to teach us what consumer companies have no interest in telling us.

Stuart concluded that we need to be more ambitious about how we interpret the media, and in particular TV. If it is viewed merely as entertainment, we are missing an opportunity. If we see it as a battleground between high art and low culture, then we have misconceived the terms of the debate. For Stuart the issue remains, 'what does this actually teach us?'

Nick Fenner, Watson, Farley and Williams

The regulatory structures governing media are a legacy of an earlier age in which Lord Reith described the prospect of commercial television as akin to "smallpox, the bubonic plague and Black Death". In his presentation, Nick Fenner explained that British broadcasting legislation makes a very clear distinction between advertising and other programming.

The ITC's stringent codes of practice govern three areas: advertising, sponsorship and cross-media ownership. Advertiser involvement in programming is strictly limited so that content such as news and current affairs cannot be sponsored.

Developments in technology and the proliferation of new media channels, owners and content providers are creating new challenges for regulators. A recent test case concerned the live broadcast of international football games and the use of an electronic imaging system which appears to change the billboard ads around the ground depending on which country the game is being broadcast in.

Under existing codes, it is not clear where the internet sits. Technically, the ITC could regulate any televisual or moving images on the web, but chooses not to. Similarly, the Advertising Standards Authority does not view the majority of internet content as its area of responsibility.

All this will change with the launch of Ofcom at the end of 2003. Currently, plans for the proposed new single regulatory body describe its functions in fairly ambiguous terms, reflecting an awareness that the speed of change in the media is almost too rapid to keep up with.

What is certain is that we will have a single regulator, with a sliding scale of regulation, and an emphasis on consumer choice.

Ian Kenny, Ogilvy and Mather

Ian Kenny argued that hostility to brands is misplaced. Brands exist to give consumers a recognisable sign of quality and reliability, and are based on trust, as this is in the long-term interests of brand owners.

Brand power is also overstated: of the top 70 brands, 41 declined in value last year, and brand loyalty is also on the wane among all age groups of consumers. The increase in media channels reduces audience share for individual broadcasters, while increasingly cynical, media-savvy audiences are forcing advertisers to work a lot harder to gain their attention. On average, consumers are exposed to over 150 'messages' each day on their journey to work.

Because regular advertisements are not as effective as they once were, companies are now seeking to to gain wider exposure for their products by increasing their brand presence within movies, TV shows and magazine articles. Product placement is a well established method of achieving this, with the likes of BMW and Omega making regular appearances in James Bond films, for example, in return for generous financial contributions towards production costs.

Taking this theme further, many brands now fund and produce their own content, often in partnership with traditional media producers. But is this such a bad thing? Ian reasoned that is not in a company's interest to produce cheap, low quality content, because to do so would undermine the value of its brand -- and result in failure to attract an audience, which is the primary objective of the exercise.

The Pepsi Chart show is a case in point: the programme is of sufficient quality to ensure that it has been sold to 35 countries, while Pepsi's sponsorship gave Channel 5 a successful show that it couldn't otherwise have made.

Ian also argued that in Britain we have no reason to fear a loosening of regulatory strictures. While the safeguards in the US are considerably fewer than here, viewers in the UK have an expectation of protection and they do not wish to lose it. Again, it would not be in a brands' interest to undermine that sense of trust.

Children's programming is the one area in which Ian believes there is a convincing ethical argument against increasing brand presence in programming. But in all other respects, he proposed that advertising and the presence of brands improves the quality and choice of programmes.

Speaker Profiles

Stuart Nolan, Writer and Technologist
Writer and technologist Stuart Nolan has produced enhanced versions of over 20 commercial TV shows, and is founder of the Interactive TV Knowledge Sharing Initiative that cultivates links between the Interactive TV industry and academia. He is a consultant on Interactive TV to UK and European government initiatives and has written and lectured internationally on the subject. As an educationalist he has developed courseware and lectured in Digital Media, Software Design and Implementation, Interactive TV, Project Management of New Media, Human Computer Interface Design, Multimedia Programming, and Computer Game Design.

Nick Fenner, Head of Media and Intellectual Property Law, Watson Farley and Williams
Nick Fenner is a solicitor with a particular focus on intellectual property and regulatory issues affecting the media. He advises advertising and new media agencies such as Redwood, Brandhouse and Publicis, as well as content providers such as RHB. Earlier this year he advised the Department for Education and Skills on a groundbreaking commercial sponsorship arrangement for a national government funded project.

Ian Kenny, Digital Communication Director, Ogilvy & Mather
After graduating from London University Ian began his career in the marketing department of Our Price music before moving over to the agency side with DMB&B to work on the Burger King account. He joined Ogilvy in 1997, working on Ford and Unilever. In 1999 he was promoted to Digital Communications Director at Ogilvy and was responsible for the successful pitch for Unilever Bestfoods' first iTV project, Creative Kitchen. He worked with Unilever and Open to launch the first ever-interactive TV commercial for Chicken Tonight; this was followed by launches on NTL, Flextech and the first interactive terrestrial ad on ITV's Carlton network.

Richard Adams, Strategic Technical Director, Incline Media
Richard’s focus is to examine new digital technologies and to identify their potential for the creation of exciting content and advertising campaigns. His work involves understanding how people use emergent media, what impact that has on the creative process and how the company and clients should move forwards in terms of content, technology and skills acquisition. Richard has worked extensively in emergent media, particularly interactive TV. He was founding Head of Digital Arts at the London College of Music and Media and in 1998 co-founded Earcom, a new media audio production and consultancy firm. Richard has written and spoken widely on the nature of emergent media and is committee member of the BAFTA Interactive Forum.

This event was produced in partnership with Richard Adams of Incline Media: www.incline.co.uk.