Restriction on "political advertising" – Saudi Centre for International Communication
When will an advert fall foul of the prohibition on political advertising?
During an official visit to the UK by Crown Prince Mohammed bin Salman in March 2018, the Saudi Centre for International Communication placed a TV ad on Sky on behalf of the Kingdom of Saudi Arabia for its Vision 2030 strategy. The ad was part of a wider campaign during the Crown Prince's visit.
The advert was broadcast on the Sky 1 channel 56 times during the three days of the Crown Prince's visit. It comprised a series of images and footage of historic and contemporary Saudi Arabia which included: cityscapes; women driving; cinemas; entertainment; cultural events; industry; the Vision 2030 logo; members of the Saudi Royal Family; and the flags of Saudi Arabia and the UK. These were accompanied by the following voiceover:
“Things are undoubtedly changing in Saudi Arabia. Economy and daily life are shifting quickly. Saudi women have been allowed to drive and cinemas are set to open again this year, after a 35-year ban. The entertainment sector is bracing itself for a new era – one of concerts and cultural events. The Kingdom is reducing its reliance on oil by investing in various projects to achieve the 2030 vision of turning Saudi Arabia into a hub connecting three continents. Led by King Salman and Crown Prince Mohammed Bin Salman, these action-oriented goals are within reach. Key world partnerships are at the heart of this shift, mainly with the United Kingdom. Our longstanding relationship brings increased prosperity and security for both countries”.
Ofcom received three complaints from viewers who complained that the ad was political advertising, in breach of the Communications Act 2003 (the Act) and as reflected in the UK's Broadcasting Code (the BCAP Code). In most circumstances the BCAP Code is enforced by the Advertising Standards Authority, but Ofcom retains responsibility for enforcing the rules on political advertising.
The complaints were upheld.
Ofcom held that the ad infringed the Act, on the basis that it breached the prohibition on political advertising. Under the Act, an ad contravenes this prohibition if it is "an advertisement directed towards a political end" (section 321), which is defined as including "influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy".
Ofcom found that the ad did not fall within the exemption for ads of a "public service nature" inserted by or on behalf of a government department (ie where the intention is to inform and educate the public by providing information that is in the public interest). To the contrary, Ofcom held that the ad's primary purpose appeared to be to "promote the Kingdom positively to the UK audience and to endorse the benefits of maintaining a relationship with the Kingdom at a time of heightened public controversy in the UK". In reaching that decision Ofcom considered the ad's content and context, in particular the fact that the ad's broadcast coincided with the official visit to the UK by the Crown Prince.
As to whether the ad constituted political advertising, Ofcom rejected submissions that the ad was primarily concerned with trade between the UK and the Kingdom. Instead it found that the focus was "on the longstanding relationship between the UK and the Kingdom of Saudi Arabia generally…". Ofcom noted that the ad made no express reference to trade but rather referred to issues which were a matter of public controversy at the time of the broadcast, for example freedom of speech and women's rights. Ofcom stated that the ad "appeared designed to promote positively the Kingdom of Saudi Arabia and to persuade UK viewers of the benefits of the UK maintaining a relationship with it, at a time when such a relationship was a matter of contention". For those reasons Ofcom took the view that the ad was intended to influence public opinion in the UK on matters of public controversy.
Why is this important?
The decision presents certain difficulties for advertisers, not least because the ad in question was pre-approved by Clearcast (the UK's TV clearance body). As Clearcast argued in its submissions to Ofcom, the decision presents a significant challenge to its future pre-clearance work, not least as advertising which at the point at which it is cleared may not be controversial, but may become so by the time at which the ad is broadcast.
The decision also raises challenges for governments, companies and individuals alike who may find themselves the subject of public controversy, given the wide-ranging definition of "political advertising" under the Act.
Any practical tips?
Beware the broad definition of 'political advertising' in the Act! Remember that this goes much further than 'politics' in the traditional sense, but extends to "influencing public opinion on a matter, which in the United Kingdom, is a matter of public controversy" (section 321).
Ofcom makes clear in its decision that "context is crucial". When planning an advertising campaign which has the potential to excite public controversy, marketers should carefully consider the timing and content of their ads to avoid falling foul of the prohibition on political advertising. In this case, if the TV ad had focused more on trade between the UK and Saudi Arabia and less on matters of heightened public controversy (eg women drivers), it may have had more chance of surviving when assessed under section 321. It might have helped also if the ad had not been compressed into a particularly tight time‑frame (during the Crown Prince's visit), but had been broadcast for a longer period around his visit.