Introduction

Clearcast’s decision to ‘ban’ the Christmas advertisement belonging to frozen food retailer Iceland backfired spectacularly last week with over 600,000 people signing an online petition calling for the ad to be allowed to air on TV. The short film shows a cartoon orangutan called ‘Rang-Tan’ who has set up home in a little girl’s bedroom and seems to be upset with many items in the room such as chocolate, shoes, shampoo, and houseplants. While the little girl is initially annoyed at Rang-Tan and tells her to leave – the viewer is then told why Rang-Tan has taken shelter in the bedroom – ‘there are humans in my forest and I don’t know what to do’ is the heartbreaking reply. The film cuts to show the devastation caused in Rang-Tan’s home forest due to the unethical harvesting of palm oil. The ad has now been viewed over 2.6 million times on YouTube and Iceland’s call-for-arms tweet about the banning of their ad has been shared over 85,000 times on Twitter (at the time of writing). So, what happened with the Iceland Christmas campaign that has caused such an online storm? Let’s start at the beginning.

Regulation of TV Advertising

Ofcom is the regulator for communications and has a statutory duty to maintain standards in advertising. In the Communications Act 2003, a responsibility was placed on Ofcom to look for alternative forms of regulation when it was practical to do so. It was under this duty that Ofcom formed a co-regulatory relationship with the Advertising Standards Authority (ASA). The ASA is an independent body that regulates TV advertising on a day-to-day basis. (Ofcom, 2018) The ASA investigate complaints and can either request that an advertisement is not shown again or it can refer the offender to Ofcom (or other bodies such as The Office of Fair Standards).

In addition to this co-regulatory aspect of TV advertising, there is also a self-regulatory element. The ASA monitors and hears complaints made about broadcast advertising content working to a set of regulations known as the Broadcast Code (the ‘Code’) This Code is written by the Broadcast Committee of Advertising Practice (BCAP), which is made up of representatives of media owners, advertisers and advertising groups. Consequently, the Code is written by the advertising industry and monitored by an independent body (the ASA) with broad oversight provided by Ofcom, for example, any major changes to the Code must be approved by Ofcom.

Broadcasters have a duty (under their licences) to make sure that advertisements they air are Code compliant. To ensure this compliance, TV broadcasters in the UK established and fund a pre-clearance centre called Clearcast. Companies who wish to buy advertising space on TV must submit their ad for clearance to Clearcast. The next section will explain how Clearcast works and how the centre managed to earn itself a Grinch-like reputation over its decision on Rang-Tan.

Who is Clearcast?

Clearcast is a privately owned company; Clearcast’s shareholders are ITV, Channel 4, Sky Media and Turner. The company works with advertisers to assist them in making sure their ads are reaching target audiences and that the content of the ads are within the boundaries of the Code. The TV broadcasters rely on Clearcast to make sure that any ads submitted to them are Code compliant – it stands to reason, therefore, that if an ad is found to be in contravention of the Code by Clearcast the broadcaster will refuse to air the ad.

The complex story of the Rang-Tan film

The problem with the Iceland advertisement lies with the fact that Iceland did not make the Rang-Tan film. Credit for the film goes to Greenpeace. Greenpeace lobby for change in law, policy, and actions to better protect the environment. It is this mission that has caused the problem for Clearcast. Clearcast clear ads to air according to the rules set out in the Code. Rule 7 of the Code deals with ‘Political and Controversial Matters’ (ACA, ‘BCAP Code’). Rule 7 prohibits advertisements which seek to change legislation, government action, or influence public opinion on controversial matters and is derived from s.321 Communications Act 2003. Specifically, rule 7.2.1 of the BCAP Code relating to political matters states:

An advertisement contravenes the prohibition on political advertising if it is:
a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature.

This is the specific rule upon which Clearcast has based its decision (Clearcast, 2018). Clearcast clarified in their press release that it is not a regulator and cannot ‘ban’ ads. However, the broadcasters who own Clearcast (ITV, Channel 4, Sky Media and Turner) do not air advertisements that have not been cleared by Clearcast – so, in refusing pre-clearance to the Iceland ad Clearcast has de facto banned it.

Does Rang-Tan breach rule 7.2.1 of the Code?

The problem with the Iceland ad, as Clearcast sees it, is that Iceland obtained permission to use a film originally made, and so associated with, a group – Greenpeace – which has a political objective. Clearcast decided therefore that it was inserted ‘by or on behalf of a body whose objects are wholly or mainly of a political nature’. But, is this correct? Greenpeace’s original ad is here (Greenpeace, 2018) while Iceland’s ad is here (Iceland, 2018). It is indeed the same film, there are, however, small but significant changes. In the Greenpeace ad the Greenpeace logo is on screen for the duration of the film. When the film ends the text says ‘Let’s stop palm oil destroying the rain forest’ the next frame displays text saying ‘Sign the petition’ with the Greenpeace logo under that message. In contrast, the Iceland version has the same short film but has removed the Greenpeace logo from the film completely and replaces Greenpeace’s message and petition text with ‘We’re removing palm oil from all our own label products’ the last frame then displays the Iceland logo. Iceland announced this year that it will ban palm oil from its own-label products by end of 2018 and remove plastic from own-label packing by 2023 (Iceland, 2018); the Rang-Tan campaign therefore fits Iceland’s corporate message regardless of who initially made the film. In email correspondence with Iceland the company confirmed that it spent a number of weeks working through revisions of the film (presumably agreeing to completely remove all reference to Greenpeace) but that ultimately Clearcast decided that this removal of Greenpeace from the film did not meet the requirements of rule 7, and therefore was not suitable for broadcast.*

The problem with rule 7

Rule 7 exists to prevent wealthy political parties running campaigns on TV (party political broadcasts are not advertisements – parties are given separate airtime at key times such as elections and referendums).The objective is to avoid a system similar to that which exists in the US whereby constant political ads are shown resulting in wealthier candidates being able to platform their message more prominently than less wealthy rivals.

While the reason behind rule 7 is legitimate the issues with rule 7 are twofold 1) it is too subjective and 2) the term ‘political’ is too broad. Greenpeace do have a political agenda but so do the majority of non-profit organisations. Seeking changes in law, policy, or action is what they do! To decide that one non-profit is ‘too political’ while another is ‘political, but not too much’ is to apply the Goldilocks principle to the politics of non-profits. The precarious situation for NGOs (and the corporations who wish to partner with them) is that Clearcast decides whether an ad featuring the NGO can be aired – if Clearcast believe the NGO is ‘too political’ the NGO will not be allowed to broadcast on the shareholder channels. This is grossly unfair and leaves TV advertising open to accusations of censorship.

It appears that some non-profit/corporate campaigns (otherwise known as ‘cause-related marketing campaigns’ or ‘CRM’) are acceptable to Clearcast while others less so. For example, in Christmas 2016 Waitrose partnered with Crisis (Waitrose, 2016). It noteworthy to read Crisis’s mission statement: (Crisis, 2018)

As the national charity for homeless people, Crisis is well-respected for high-profile campaigning for political changes needed to end homelessness for good. (emphasis ours)

Clearcast cleared the Waitrose TV ad despite the link with Crisis (50p per book associated with the ad was donated to Crisis (The Guardian, 2016). Crisis (as is their duty) is clear that it campaigns for political and social change in homelessness while Greenpeace is clear (as is their duty) that it campaigns for political and social change in environmental policies. The Waitrose/Crisis campaign shows subjectivity and inconsistency in how Clearcast applies rule 7.

The Rang-Tan campaign is not the only campaign to fall foul of what appears to be quite a subjective process of pre-clearance by Clearcast. In 2014, Third Sector wrote an article outlining the issues non-profits faced when submitting an advertisement to Clearcast for pre-clearance – all falling due to rule 7. Upon reading the Third Sector article it appears that Clearcast has a history of not clearing advertisements due to finding that the organisations are too political rather than finding the content of the ad is too political. Affected organisations are listed Animal Defenders International, Make Poverty History, the RSPCA, Amnesty International and ONE (Third Sector, 2014).

Should Rang-Tan be allowed to air?

In sum, the decision made by Clearcast regarding Rang-Tan is a tad baffling but, upon reflection of its history, not altogether surprising. Clearcast appears to display an arbitrary subjectiveness, providing little insight into the reasoning involved, when deciding which campaigns/non-profits it deems ‘too political’. Accusations of subjective decision making are compounded when one campaign with links to a non-profit (Greenpeace) is deemed too political while another campaign linked to a non-profit (Crisis) is passed for broadcast.

The solution, it would seem, in the short-term, is for Clearcast to acknowledge that it has made an error and clear the Rang-Tan for broadcast; if complaints are made in relation to rule 7 at a later date then it is for the ASA to rule on the political standing of Greenpeace or refer the campaign to Ofcom for clarification. It seems unjust that a private company can hold the power of deciding the level of political activity of a non-profit and on that basis whether or not a campaign ought to be broadcast. This decision should be made by the regulator, not at the pre-clearance centre.

In the longer term, it would be helpful if the statutory instrument upon which rule 7 is derived was amended. Sections 321(2)(3) of the Communications Act 2003 establishes the law on political advertising – the law should be amended to clarify explicitly that non-profits (charities) can have wholly political objectives (to lobby and campaign for change). It is acknowledged this would involve also amending Charity legislation – but that is for another blog! Cause-related marketing campaigns have the potential to do much good and a law which sought to curb wealthy political parties from saturating TV with political advertisements should not be used to quieten messages about the environment, animal abuse or other issues which have been labelled as ‘too political’ for TV viewers.
Rang-Tan is shaping up to be the winner of the 2018 Christmas advertising campaign – if any good can come of this controversy let it be a more urgent focus on finding real, sustainable, and ethical solutions to the concerns highlighted in the film – there are few more pressing business and human rights issues than the human destruction of the planet we share with so many other species.

*The authors contacted both Iceland Foods and Clearcast prior to the publication of this blog. Both responded. Iceland clarified that the company had made changes to the Rang-Tan ad to try to get the ad to air. Clearcast responded but did not answer the questions put to the company. The questions sent (by email on 11th and 12th/11/2018) are: 1) Will your four shareholders proceed to air an advertisement even if your company refuse to give the ad clearance? 2) Is there anywhere on your website where a full text of the Iceland Foods decisions is given? The authors will update this piece if Clearcast answer these questions.

Clare Patton is an ESRC funded research fellow in the School of Law at Queen’s University Belfast. Ciara Hackett and Ciarán O’Kelly are lecturers in the same school and all three work in collaboration in a Business and Human Rights research group.

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