Fundação para a Ciência e a Tecnologia (FCT

Melo, Ana Duarte

Sousa, Helena

Universidade do Minho: RepositoriUM

217MEDIA POLICY AND REGULATION: ACTIVATING VOICES, ILLUMINATING SILENCESA DARKER SHADE OF PALE: THE NEVER ENDING BURDEN OF ADVERTISING REGULATIONA Darker Shade of Pale: the never ending burden of advertising regulationAna Duarte Melo anamelo@ics.uminho.ptUniversity of Minho, PortugalHelena Sousahsousa@ics.uminho.ptUniversity of Minho, PortugalI. IntroductionAdvertising innovative and creative nature leads to experiment and daring beyond set-tled boundaries, therefore constantly setting new challenges to regulation. In this paper we will reflect on the role of advertising as driver of its own normative structure the subjects that are matter of regulation, and the reasons that lead to that need. We will map ad regulation most common issues and analyse regulation mentions in professional media (Jan-Jul 2013).II. A Darker Shade of Pale: the never ending burden of advertising regulation The pervasive nature of advertising — being one of the most influential institutions of contemporary western societies — and the uneasy ground where it acts — in the conflu-ence of corporations, consumers and civil society interests — advertising tends to draw attention to ethic, deontological and regulatory matters. On one hand, advertising is on the combat front of several opposite interests, self-de-fined by living (and making a living) on the edge of communication. By using creativity and persuasion as working tools, advertising is frequently accused of manipulation and unscrupulous operational methods, especially in the fields of behavioural, neural or sub-liminal advertising. 218MEDIA POLICY AND REGULATION: ACTIVATING VOICES, ILLUMINATING SILENCESA DARKER SHADE OF PALE: THE NEVER ENDING BURDEN OF ADVERTISING REGULATIONOn the other hand, media ecology itself is currently under construction, with new bounda-ries being set and discovered as technology moves on into the everyday life, thus setting an ever renewed group of shadowy areas: internet, new media, private vs public space, mining/monitoring with/or without consent for advertising purposes, etc. Furthermore, advertising uses elaborated persuasive technics to build on the power of assumed commercial and economic interests in a highly influential but simultaneously under permanent scrutiny communication network. Being creative, innovative and persuasive, advertising is constantly setting new chal-lenges to society and regulation, both format and content wise, operating as a driver of its own regulation through ever renewed territories and boundaries.In order to better understand the concept of advertising regulation we will look at its implications through a four pillar approach: legislation, best practices, principles and the consumer-citizen perspective. By legislation we imply the law in general and the advertising law in particular, with its specific codes that establish very specific rules to the advertising system and some-times even stricter norm within certain subthemes, like tv, internet, or children adver-tising. But besides the norms specified in laws, codes and decrees we have to consider the possible interpretations of the law, its implementation conditions and, furthermore, supervision or the deterrent potential of applicable fines.Other contributions for advertising regulation are the so-called best practices. They do not have the institutional power of a law, but they exert the pressure of a norm of con-duct. Best practices often emerge amongst the industry advertisers — for instance, in Portugal all alcoholic drinks advertising have a mandatory inscription56 that was imple-mented by the industry itself, through the advertisers association APAN - Associação Portuguesa de Anunciantes. Concurrently, best practices originate in the milieu of advertising professional communi-ties. The recently best practice code issued by APAP - Associação Portuguesa de Agências de Publicidade e Comunicação, to face unsustainable pitch contests is a good example. Furthermore, advertising agencies frequently develop specific modus operandi according to their own vision, mission or philosophy. These criteria and rules work as norms of con-duct to deal with specific problems on the global scale of media corporations. To summa-rize, emerging amongst pairs, best practices originate in problem solving issues and mirror the social and deontological responsibility of the actors involved.56 “Beba com moderação” - Drink moderately.219MEDIA POLICY AND REGULATION: ACTIVATING VOICES, ILLUMINATING SILENCESA DARKER SHADE OF PALE: THE NEVER ENDING BURDEN OF ADVERTISING REGULATIONGenerally advertising regulation is based on principles or, to put it in other words, in com-monly accepted values. Although this perspective on regulation is prone to discussion — Ju-lia Black (2010) argues that the financial crisis set up a crisis in principle based regulation (Black, 2010) and Hannu Nieminen (2013) identifies a shift in media regulation “favouring regulatory means formerly used mainly in the area of competition policy. By the same to-ken, regulatory means based on democratic societal values have lost out” (Trivundža et al., 2013:50). — most essential advertising regulation is based in principles. Principles based regulation is seen by some as well intentioned but less effective rules prone to some ironic criticism.“Ah, the good old days of advertising when you could simply tell bare-faced lies: ‘The cigarette that doctors recommend’, etc. Alas, those days are gone and in the UK we now have the Advertising Standards Authority (ASA) to keep us in line with their Committee of Advertising Practice (CAP) codes and their goody-two-shoes, Boy Scout motto: ‘Honest, decent, truthful and legal’.”(Bowdery, 2008:107)In Portugal, four main principles are identified — and mentioned in the law — to frame the rationale of advertising regulation. According to these principles — lawfulness, iden-tification, truth and respect for consumer rights — all advertising must follow all legal requirements; must be properly identified as commercial communication by opposition to information or entertainment; must be true or be based in truthful assumptions; and must respect consumers rights in all their specific rules.Consumer-citizens are the other factor of this equation, particularly significant to what can be described as “acceptable advertising” (Harker, 1997) as it is their cultural values, expectations and demands that frame advertising regulation and the way it is acknowl-edged, complied to or rejected.To a certain extent, more than the law is the practice that matters. Nevertheless “Regula-tion may be argued to be ‘less than law’ in functional terms” (Black, 2002:24), is the way law is interpreted and applied and the result of interactions between regulators and reg-ulated institutions and actors, organized frequently in “private interest governments” (Streeck & Schmitter, 1985:20 apud Black, 2002:6), that determine the impact and the outcome of the whole regulation process.Advertising regulation touches several regulatory frameworks, from market and com-petition to media regulation and communication rights. Furthermore it constitutes the structural reflection of the social, economic, political organization with all the pragmatic and ethical implications it involves: “Media regulation is a double, if not a multiply, edged sword” (Silverstone, 2008:176). And significantly some changes are becoming evident. “(…) a shift has taken place in the regulation of the media and communication indus-tries, favouring regulatory means formerly used mainly in the area of competition policy. By the same token, regulatory means based on democratic societal values 220MEDIA POLICY AND REGULATION: ACTIVATING VOICES, ILLUMINATING SILENCESA DARKER SHADE OF PALE: THE NEVER ENDING BURDEN OF ADVERTISING REGULATIONhave lost out. Simultaneously, however, there is growing awareness that, because of the wider societal and cultural value of media and communications, regulation can no longer be based exclusively on economic goals. A new balance between democratic societal interest and economic need must be negotiated that does not dispropor-tionately favour either side.” (Trivundža et al., 2013:50)Advertising regulation deals with a set of recurrent questions mainly related with its modus operandi, format or content (see Table 1).modus operandiformatcontentminoritiesgender stereotypesRegulation Issuesinternet, new mediacivil responsabilitymonitoring with/or without consentobesitymanipulationmisledingadvertisingrepresentationomnipresencebranded contentproduct placementbehavioural advertisingfoods and beveragesalcoholpharmaceuticalsviolencechildrenprivate vs public spaceThe modus operandi issues concern especially misleading advertising or representation problem like minorities or gender stereotypes. The format related issues concern the omnipresence and pervasiveness of advertising, but also the blurring of boundaries with other types of communication. Amongst them branded content; product placement; behavioural advertising and its implications: inter-net, new media, private vs public space, civil responsibility, monitoring with/or without consent.Table 1 - Ad regulation common issues map221MEDIA POLICY AND REGULATION: ACTIVATING VOICES, ILLUMINATING SILENCESA DARKER SHADE OF PALE: THE NEVER ENDING BURDEN OF ADVERTISING REGULATIONContent matters tend to draw attention to a number of themes like violence, sex, health issues like tobacco or obesity, children related advertising or activity sectors: foods and beverages, alcohol and pharmaceuticals being some examples.We analysed advertising regulations mentions in professional magazines — three Portu-guese (Briefing, M&P, Marketeer) and Ad Age, the international advertising magazine — between January and July of 2013.Our findings (Table 2) indicate that the traditional subjects are mentioned. Nevertheless, is also possible to identify some specific concerns, self-regulation being the main refer-ence on regulation mentions. Briefing Marketeer Ad AgeMeios & PubICAP debates SR100% compliance on food ads to childrenWFA: new president elects SR as priorityCoca-Cola works on a SR code specially directed to MumsGlobal Guide to Pharma Marketing Codes.EU to restrict ads of “not so healthy” food to -18Agencies abandon CP public ad pitchAnalogical regulation unfit for digital business modelApple looses suit against Amazon for misleading adMarketeers wait for Feds to act on regulationWFA to decide what's worth protecting40 years after Ad industry SR is golden ruleFB with new rules to protect advertisersUSA want better identified ads in internetCode for “The Right Value” to pay to ad agenciesChildren participation in ads: EU regulation projectVodafone acuses Optimus of misleading advertisingPortuguese ad for arms control cause in Cannes an in the UN.Table 2 - Ad regulation mentions in professional media (Jan-Jul 2013) *SR – Self Regulation; CP – Camin-hos de Ferro Portugueses – Portuguese public railway company.One of the ideas expressed focus on the need for regulation felt by advertisers them-selves. This specific news relates with the absence of regulation over the use of the expression “Natural” in packaging products and advertising, leaving advertisers at the mercy of law litigation. The lack of a regulated definition of what can be considered ‘nat-222MEDIA POLICY AND REGULATION: ACTIVATING VOICES, ILLUMINATING SILENCESA DARKER SHADE OF PALE: THE NEVER ENDING BURDEN OF ADVERTISING REGULATIONural’, poses an important pragmatic problem and has been demanded by advertisers in the USA since 2007, but “FTC and FDA have refused to define “natural,” leaving marketeers open to suits.”57 Advertising regulation is a reflection of the balance between different powers and in-terests and their evolution through social and cultural changes. This balance is not al-ways easy and endures the commitment of different voices and sides. The fact that the recently appointed president of the World Federation of Advertisers, that represents 60 of the world’s biggest advertisers and 90% of the global marketing-communication spending — $700 billion/year, chose regulation as his inaugurating speech theme, seems to be significant of the relevance that regulation has in the advertising industry.“We have to determine what’s worth protecting in society in a way that allows mar-keters to do their jobs, but at the same time we have to listen to what is driving the arguments coming from legislators and regulators (…) All of us - business leaders, governments, regulators - in positions of responsibility have to take a step back and see where it’s all leading, and that it’s good for society. But it’s going to be a debate, because none of us know.”58As much negotiation skills it demands, advertising regulation seems to be a relevant fac-tor of sustainability in the not-always-so-straight path of advertising, demanding from all actors high ethical standards and leading responsibility.57 Adage, 11.3.13 58 Martin Riley, President of World Federation of Advertisers, ADAGE, 11.3.13223MEDIA POLICY AND REGULATION: ACTIVATING VOICES, ILLUMINATING SILENCESA DARKER SHADE OF PALE: THE NEVER ENDING BURDEN OF ADVERTISING REGULATIONReferencesBlack, J. (2002) Critical Reflections on Regulation, London: Centre for Analysis of Risk and Regulation at the London School of Economics and Political Science, [http://www.lse.edu/collections/CARR/pdf/Disspaper4.pdf, accessed 2010]. ISBN: 0753019280.Black, J. (2010) ‘The Rise, Fall and Fate of Principles Based Regulation’, LSE Law, Soci-ety and Economy Working Papers 17/2010 [website], vol. 17/2010, (2.1.2013), London School of Economics and Political Science, Law Department. ISSN: http://eprints.lse.ac.uk/32892/1/WPS2010-17_Black.pdf.Bowdery, R. (2008) Copywriting, Lausanne: AVA Publishing, Sa.Harker, D. (1997) ‘Achieving acceptable advertising: An analysis of advertising regula-tion in five countries’, International Marketing Review, vol. 15, n.º 2: pp. 101-118. ISSN: 0265-1335.Silverstone, R. (2008) Media and Morality on the Rise of the Mediapolis, Cambridge: Pol-ity Press, accessed 2012]. ISBN: 10-0-7456-3503-2.Trivundža, I. T. et al. (Eds.) (2013) Past, future and change: contemporary analysis of evolving media scapes, Vol. 8, Editado por Nico Carpentier & Pille Pruulmann-Venerfeldt, The researching and teaching communication series, Ljubljana: Faculty of Social Scienc-es, University of Ljubljana Press: Založba FDV, [http://www.researchingcommunication.eu/SUSObook201213.pdf, accessed 25.7.13]. ISBN: 1736-4752.

A Darker Shade of Pale: the never ending burden of advertising regulation

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