Bulgaria: An Overview Of Surreptitious Commercial Communication

Last Updated: 26 January 2018
Article by Petko Angelov and Yoanna Ivanova

Pursuant to article, 75 from the Radio an Television Act (RTA) commercial communications must be  clearly recognisable as such. Surreptitious commercial communications prohibited. Pursuant to article  75, paragraph two of the RTA, 'surreptitious commercial communication' means the representation  in  words or pictures of goods, services, the name, the trademark or the activities of a producer of  goods or a provider of service in programmes.

This representation comes into question when intended by the media service provider to serve as advertising and could mislead the public as to its nature, in particular if  it is done in return for payment or for similar consideration. Producers of goods and providers of  services may not exercise influence on editorial content. Commercial communications shall not use  subliminal techniques. "Subliminal techniques" means indirect methods, which are not identified  as  commercial communications and are not recognised by the audience as such, but may elicit a  subconscious mental reaction and produce a predisposition to the presented goods and services in  the audience .

Commercial communications must not:

  • prejudice human dignity;
  • include or promote any discrimination based on grounds such as sex, racial or ethnic origin,  nationality, religion or belief, disability, age or sexual orientation;
  • encourage behaviour prejudicial to health or safety;
  • encourage behaviour grossly prejudicial to the protection of the environment.

All forms of commercial communications for cigarettes and other tobacco products shall be prohibited.

Commercial communications for alcoholic beverages must not be aimed specifically at children and  may not  encourage immoderate consumption of such beverages. Commercial communications for medicinal products available only on prescription or  for medical  treatment available only on prescription shall be prohibited, with the exception of the cases  under Article 248 of the Medicinal Products in Human Medicine Act .

Commercial communications must not:

  • pose a risk of physical or moral detriment to children ;
  • directly exhort children to buy or hire a product or service by exploiting their inexperience  or credulity;
  • encourage children to persuade their parents or others to purchase the  goods or services being  advertised;
  • exploit the special trust children place in their parents, teachers or other persons;
  • unreasonably show children in dangerous situations.

Audio-visual commercial messages and commercial messages on radio services must not be aired at a volume sound which would be higher than the volume sound of the remaining part of  the programme.

With regard to

  1. negative effects of the surreptitious audio visual commercial messages to consumers, which are prohibited by Directive 2010/13/EU of the European Parliament  and of the Council  of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or  administrative action  in member states concerning the provision of audio-visual media services  (Audiovisual Media Services Directive) and
  2. frequent cases of mixing of surreptitious commercial advertising and placement of products,  goods, services and brands, and therefore the protection of interests of users of the  services is  necessary to adopt clear criteria for the application of the law to these forms and practices, the  Council for Electronic Media (Council) adopted Media Methodological Guidelines based on:
  • the  provisions of Audiovisual Media Ser­ vices Directive;
  • the provisions of the Radio and Television Act on commercial electronic messages, in particular  art.  73, paragraph. 1 and 2, art . 74, paragraph. 1 and 4, art. 75, art. 83, art . 84;
  • the practice of the European regulators regarding the hidden commercial communication and  product placement in implementing Audiovisual Media Services Directive;
  • the practice of the Court of Justice of the EU in relation to product placement (C -52/10)

In relation to the  surreptitious commercial messages the  Council adopted the following  guidelines:

Remuneration or other such payment is not  a mandatory element, which must be established in order  to have a concealed commercial communication.

The mentioning of goods, services, name, brand/trademark or activities of a producer of goods or  service provider that only has an informational purpose, does not contain the characteristics of a  concealed commercial communication and provided that the omission may lead the consumers in false  believe, is not contrary to the provisions of the law and is permissible.

The presentation with the relevant media resources of interlocutors, guests and other participants  in the programmes, which only has informational purposes and contributes to the quality of the  programme/media service in the interest of the audience, does not contradict  the provisions of the  law and the practice is permissible. In these cases  the  verbal or written representation of the  names of the participants, coupled with their official positions, including  names of legal  entities and their expert competence (without graphical representation of the brand/trademark), is  allowable.

The presence over the clothing of the interlocutors, guests and other external participants in  the transmission of trademark, usual for the indication of the manufacturer of the co-respondent  clothing, as well as of sponsor's trademarks of sportsmen over sports clothing, is not contrary to the provisions of the law and is permissible practice.

With respect to the positioning of the products the Council adopted the following guidelines: In order to implement the strict regulatory requirements in terms of product placement the  Council will follow in its regulatory practice following requirements:

  • arrangement of transmissions in a programme scheme must not be influenced in a manner  affecting the responsibility and the editorial independence of the media service provider . The  media service provider is obliged to provide transparent measures to guarantee this responsibility,  preventing the possibility of hidden advertising and hidden product placement product placement must not promote direct purchase or rental of goods and ser­ vices, and more  specifically, explicit advertising of particular goods or services .
  • Products, services and brands/trademarks may be represented with certain limitations and without  undue emphasis. In cases connected with the theme of transmission and the development of a  particular storyline, there is an assumption that the placed product could get unduly accentuated.  The supplier of audio-visual media services must include an additional graphic symbol in order to  inform the spectator that there is an overlap of the theme or the storyline with the placed product  .
  • The provision of a graphic symbol, to inform viewers of the presence of a commercial message  and probability of undue emphasis on a product, should appear at the beginning of the corresponding  theme or other storyline and must remain for at least five seconds .
  • The appearance of a graphic symbol alerting views to commercial messages is not  necessary if   the transmission relates to product placement, with objective analyses, and there are no grounds to  suppose the probability of reaching baseless emphasis on the corresponding product, service or  brand/trademark.

In summary, we can understand that there is no obstacle for the electronic media to indicate  brands/trademarks as a part of the information content if it is important for the public interest  and influence over a substantial number of spectators . The effect of regulation implemented with the guide­ lines gives  more freedom for the media to announce company names and brands. However, journalists must decide them ­ selves which event  has newsworthiness  and the importance of public interest while announcing the  name of a company,  brand, position of a person invited on a television transmission or participating in a newscast, or report in question or topic directly related to his work.

Previously published in Media Law International

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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