Communications Act 2003, section 321

Objectives for advertisements, sponsorship and product placement

Part 3 Television and Radio Services ETC

(1)Standards set by OFCOM to secure the objectives mentioned in section 319(2)(a) and [F955(fa)F955] to (j)—

(a)F957must include general provision governing standards and practice in advertising and in the sponsoring of programmes[F956 and, in relation to television programme services, general provision governing standards and practice in product placementF956] ; ...

(b)may include provision prohibiting advertisements and forms and methods of advertising or sponsorship (whether generally or in particular circumstances) [F958; and

(c)in relation to television programme services, may include provision prohibiting forms and methods of product placement (including product placement of products, services or trade marks of any description) (whether generally or in particular circumstances).F958]

(2)For the purposes of section 319(2)(g) 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;

(b)an advertisement which is directed towards a political end; or

(c)an advertisement which has a connection with an industrial dispute.

(3)For the purposes of this section objects of a political nature and political ends include each of the following—

(a)influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;

(b)bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;

(c)influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;

(d)influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;

(e)influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;

(f)influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;

(g)promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.

[F959 (3A)For the purposes of section 319(2)(fa) the product placement requirements are the requirements set out in Schedule 11A.F959]

(4)OFCOM—

(a)[F960 shall—

(i)F960] in relation to programme services, have a general responsibility with respect to advertisements and methods of advertising and sponsorship; and

[F961 (ii)in relation to television programme services, have a general responsibility with respect to methods of product placement; andF961]

(b)in the discharge of that responsibility may include conditions in any licence which is granted by them for any such service that enable OFCOM to impose requirements with respect to any of those matters that go beyond the provisions of OFCOM’s standards code.

(5)OFCOM must, from time to time, consult the Secretary of State about—

(a)F962the descriptions of advertisements that should not be included in programme services; ...

(b)the forms and methods of advertising and sponsorship that should not be employed in, or in connection with, the provision of such services [F963; and

(c)the forms and methods of product placement that should not be employed in the provision of a television programme service (including the descriptions of products, services or trade marks for which product placement should not be employed).F963]

(6)The Secretary of State may give OFCOM directions as to the matters mentioned in subsection (5); and it shall be the duty of OFCOM to comply with any such direction.

(7)Provision included by virtue of this section in standards set under section 319 is not to apply to, or to be construed as prohibiting the inclusion in a programme service of—

(a)an advertisement of a public service nature inserted by, or on behalf of, a government department; or

(b)a party political or referendum campaign broadcast the inclusion of which is required by a condition imposed under section 333 or by paragraph 18 of Schedule 12 to this Act.

(8) In this section “programme service” does not include a service provided by the BBC[F964 (except in the expression “television programme service”) F964] .

Definitions used in section 321 10

OFCOM

“OFCOM” means the Office of Communications;

Defined in s.405(1) · see it in the full Act
provision

“provision”, in relation to a service, is to be construed (subject to subsection (3)) in accordance with subsection (2), and cognate expressions are to be construed accordingly;

Defined in s.362(1) · see it in the full Act
programme

“programme” includes an advertisement and, in relation to a service, anything included in that service which is an individual item (irrespective of length) ;

Defined in s.405(1) · see it in the full Act
television programme service

“television programme service” means any of the following—

(a)

a television broadcasting service;

(b)

a television licensable content service;

(c)

a digital television programme service;

(d)

a restricted television service;

Defined in s.362(1) · see it in the full Act
product placement

“product placement” has the meaning given by paragraph 1 of Schedule 11A;

Defined in s.362(1) · see it in the full Act
body

“body” (without more) means any body or association of persons, whether corporate or unincorporate, including a firm;

Defined in s.405(1) · see it in the full Act
programme service

“programme service” means—

(a)

a television programme service;

(b)

...

(c)

an additional television service;

(d)

a digital additional television service;

(e)

a radio programme service; or

(f)

a sound service provided by the BBC;

and expressions used in this definition and in Part 3 have the same meanings in this definition as in that Part;

Defined in s.405(1) · see it in the full Act
OFCOM’s standards code

“OFCOM’s standards code” means any code or codes for the time being in force containing standards set by OFCOM under section 319 (whether originally or by way of any revision of any standards previously so set) ;

Defined in s.362(1) · see it in the full Act
broadcast

“broadcast” means broadcast by wireless telegraphy, and cognate expressions are to be construed accordingly;

Defined in s.405(1) · see it in the full Act
the BBC

“the BBC” means the British Broadcasting Corporation;

Defined in s.405(1) · see it in the full Act

Cases considering section 321 6

R (On The Application of Animal Defenders International) V Secretary of State For Culture, Media and Sport (Respondent)

[2008] UKHL 15 · 12 March 2008Limits

Applied with section 319 to prohibit paid political advertising on television and radio. The House held that the statutory scheme was necessary in a democratic society as applied to advertising pursuing legislative change (see paras [7]; [31]–[41]). Applied as the central prohibition challenged under article 10. The House held that its application to the advertisement was justified by democratic equality, broadcast impact and the absence of a workable narrower control (see paras [1]; [31]–[41]; [58]–[59]). Applied because the advertiser was a body whose objects were wholly or mainly political. The House reserved the possibility that a different compatibility question could arise if such a body sought to broadcast an advertisement unrelated to those objects (see paras [27]; [39]; [44]; [57]). Applied because the advertisement formed part of a campaign intended to bring about legislative change and was therefore directed towards a political end (see paras [7]; [44]; [57]). Applied as the inclusive definition of political objects and political ends. The proposed campaign fell within the definition because it sought legislative change and influence over a matter of public controversy (see paras [7]; [27]; [39]; [44]). The House treated this limb as one of the specified political ends distinct from an advertisement falling only within the public-controversy limb. It did not determine its application separately (see paras [7]; [39]). Applied because the campaign sought to persuade Parliament to change the law. That political end placed the proposed advertisement within the core application of the prohibition rather than at its possible margins (see paras [7]; [39]; [44]; [57]). The House treated this limb as one of the specified political ends distinct from an advertisement falling only within the public-controversy limb. It did not determine its application separately (see paras [7]; [39]). The House treated this limb as one of the specified political ends distinct from an advertisement falling only within the public-controversy limb. It did not determine its application separately (see paras [7]; [39]). The House treated this limb as one of the specified political ends distinct from an advertisement falling only within the public-controversy limb. It did not determine its application separately (see paras [7]; [39]). The public-controversy limb contributed to the breadth of the statutory definition. The House reserved the possibility of a narrower compatibility challenge where an advertisement was treated as political solely under this limb (see paras [27]; [39]; [44]). The House treated promotion of a politically organised group as part of the inclusive definition of political ends. It did not need to determine this limb separately because the advertisement pursued legislative change (see paras [7]; [39]; [44]). Cited only.

London Christian Radio Ltd & Anor, R (on the application of) v Radio Advertising Clearance Centre

[2013] EWCA Civ 1495 · 19 November 2013Limits

Cited only. Section 321(2) sets out the categories of advertisement prohibited as political advertising. The majority’s substantive construction focused on paragraph (b). (see paras [5], [12], [20]) The majority referred to the separate prohibition concerning bodies whose objects are wholly or mainly political when explaining the comparison with Animal Defenders. The present appeal concerned paragraph (b), so no independent construction of paragraph (a) was required. (see para [20]) The majority construed paragraph (b) objectively by reference to the advertisement’s text. Motives were irrelevant, while intention mattered only if expressed or implicit in the text. The advertisement was on its face supportive of a political campaign and therefore fell within the prohibition. (see paras [17], [25]-[27]) Elias LJ contrasted paragraph (c)’s use of connected with, which he regarded as wider than directed towards. The majority did not decide the comparison. (see para [53]) The majority treated the examples of political ends as non-exhaustive and rejected a narrow conception confined to direct governmental or electoral activity. Social advocacy and public debate could fall within the provision. (see paras [18]-[22]) Cited only. The majority treated bringing about legal change or otherwise influencing the legislative process as a possible political end. The advertisement need not identify a specific law where its overall message seeks change in social conditions. (see paras [11], [19], [26]) The majority treated attempts to influence governmental policies or decisions as possible political ends. Changing public-sector employment policies was given as an example of conduct within the provision. (see paras [11], [19]) The majority treated attempts to influence the policies or decisions of persons exercising public functions as possible political ends, including lobbying a public body concerning alleged discrimination. (see paras [11], [19]) Cited only. The majority held that the reference to influencing public opinion on a matter of public controversy was inconsistent with a narrow construction of political. Public debate concerning alleged workplace marginalisation could therefore engage the provision. (see paras [11], [18], [26]) Cited only. Cited only. Cited only. Cited only.

London Christian Radio & Anor, R (on the application of) v Radio Advertising Clearance Centre & Anor

[2012] EWHC 1043 (Admin) · 20 April 2012Interprets

The court applied section 321 as establishing the relevant statutory prohibition on political advertising. The prohibition was upheld as compatible with Article 10 (see paras [11]-[13], [49]-[53]). The court treated section 321(2) as containing alternative definitions of political advertising and held that only paragraph (b) was relevant to the application (see paras [11]-[13], [54]). Cited only. The court interpreted section 321(2)(b) objectively. An advertisement is directed towards a political end by reference to its content and context, without treating the advertiser’s subjective motive as decisive. The advertisement fell within the prohibition (see paras [54]-[61]). Cited only. The court used section 321(3) to identify the matters included within political ends. It held that the advertisement objectively fell within several of those matters (see paras [12]-[13], [55]-[59]). The court held that seeking information to inform public debate and help make a fairer society was capable of bringing about changes to law or otherwise influencing the legislative process (see paras [55], [59]). The court held that the advertisement was capable of influencing governmental policies or decisions because the information sought was intended to inform public debate and change society (see paras [55], [59]). The court held that the advertisement was capable of influencing the policies or decisions of persons on whom public functions are conferred by law (see paras [55], [59]). The court held that the advertisement was capable of influencing public opinion on a matter of public controversy, because it sought information to inform public debate about workplace marginalisation (see paras [55], [59]).

What each judgment says about section 321 is in the case-law panel in the full Act.

Explanatory note

678.This section specifies standards objectiveswhich must include general provisions about the required standards in advertising and sponsorship and permits OFCOM to prohibit advertisements and methods of advertising and sponsorship.

679.Subsection (2) imposes on OFCOM a duty to secure in the broadcast media a general prohibition on political advertising and advertising related to industrial disputes. This reproduces the duty imposed under the Broadcasting Act 1990 on the ITC and the Radio Authority to secure a similar prohibition. Subsection (7) specifies that an advertisement of a public service nature which is inserted by or on behalf of a government department, and a party political or referendum campaign broadcast required by a condition imposed under section 333 or by paragraph 18 of Schedule 12, may nonetheless be broadcast. The Act sets out in subsection (3) the matters which are included in the reference in subsection (2) to “objects of a political nature” and “political ends”, so as to make clear the scope of the prohibition. These include each of the following: influencing the outcome of elections or referendums in the UK or elsewhere; bringing about changes in the law or otherwise influencing the legislative process in the UK or elsewhere; influencing the policies or decisions of local, regional or national governments in the UK or elsewhere; influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the UK or of a country or territory outside the UK; influencing the policy or decisions of persons on whom functions are conferred by or under international agreements; influencing public opinion on a matter which in the UK is a matter of public controversy; and promoting the interests of a party or other group of persons organised in the UK or elsewhere for political ends.

680.It is because of the ban that this section (in conjunction with section 319(2)(g)) would impose on political advertising that, in the light of the decision of the European Court of Human Rights in the case of Vgt Verein gegen Tierfabriken v Switzerland, the Minister in charge of the Bill was unable to make a statement of compatibility under section 19(1)(a) of the Human Rights Act 1998. The fact that the Minister made a statement under section 19(1)(b) of that Act does not, however, mean that the Government believes the ban would necessarily be found to be incompatible if the ban were to be challenged in the United Kingdom courts or to be considered by the European Court of Human Rights.

681.More generally, subsections (5) and (6) provide for consultation by OFCOM with the Secretary of State regarding the descriptions of advertisements that should not be included in programme services; and the forms and methods of advertising and sponsorship that should not be used. In addition, the Secretary of State has a power to issue directions (with which OFCOM must comply) on any of those matters.

All the explanatory notes for the Act

Amendments and notes

12 notes from legislation.gov.uk

Amendments

  1. F954S. 321 heading substituted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(2)
  2. F955Word in s. 321(1) substituted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(3)(a)
  3. F957Word in s. 321(1)(a) omitted (16.4.2010) by virtue of The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(3)(c)
  4. F956Words in s. 321(1)(a) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(3)(b)
  5. F958S. 321(1)(c) and word inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(3)(d)
  6. F959S. 321(3A) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(4)
  7. F960Words in s. 321(4)(a) substituted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(5)(a)
  8. F961S. 321(4)(a)(ii) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(5)(b)
  9. F962Word in s. 321(5)(a) omitted (16.4.2010) by virtue of The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(6)(a)
  10. F963S. 321(5)(c) and word inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(6)(b)
  11. F964Words in s. 321(8) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(7)

Commencement

  1. I445S. 321 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)