The media should not hold back from mentioning brand names or commercial companies because they are an important part of society’s life. But there are cases when saying brand names turns into hidden advertising. How does one distinguish one from the other?
Hidden advertising (locally referred to as “jeans”) is one of the major issues in Ukraine’s media environment, destroying trust between journalists and the audience, and depriving healthy media of the chance to legitimately earn from advertising. At the same time, not every media story about a company, brand or service is hidden advertising. Accusing journalists and newsrooms writing about the economy and business of covert advertising often has to do with the shortcomings of the form or the media’s passive position, unknowingly relaying advertising messages. However, being silent about news and topics relating to business and commercial companies to avoid mentioning brand names in stories is not a way out. Businesses and the economy are a part of the country’s and society’s life, and the media audience will never get a complete picture of the world without stories covering this topic. The Independent Media Council offers its recommendations to help journalists and editors speak about companies and brands in a non-advertising format.
What is advertising? According to the law On Advertising, it is information designed to shape or keep up consumers’ awareness and interest in a particular person or product. This also includes services, works, and intellectual property products, not just material objects. Therefore, if a publication does not stimulate the desire to run off to buy a product or service or draw attention to a person, it is not advertising. Merely mentioning a trademark cannot always be thought of as a form of advertising: for that, information needs to be presented in such a way as to arouse consumers’ interest in the goods or services carrying trademark labels.
Hidden advertising is information working as an ad but able to mislead the audience by concealing the true purpose of the message. Signs and boundaries of hidden advertising are laid out in the law rather vaguely and punishments are usually not applied for hidden advertising in Ukraine. However, some editors and authors are concerned that their stories should not be mistaken for covert advertising as it could tarnish their reputation as an honest media outlet (journalist).
Besides regular advertising in the legal sense, the media often have more sophisticated ways of forming public opinion in favor of a particular commercial brand, policy, bill, etc. This is already the realm of PR, systematic and purposeful actions of stakeholders to change general opinion about a phenomenon, person or company. The Independent Media Council can interpret them as covert advertising, aka “jeans”, if the authors of such stories fail to adhere to journalistic standards and the ethics code by not providing other views on the subject, complete and reliable information, etc.
What is sponsorship? Sponsorship is voluntary material, financial, organizational and other support by people and organizations of any activity to promote their name, title, or trademark for goods and services. At the same time, sponsorship should be identified, as should advertising. According to Part 4 of Article 5 of the law On Advertising, a program prepared with the support of a sponsor has to be indicated in the captions or narration at the beginning and/or at end of the program. Therefore, the program’s host (except during newscasts) may as well mention the brand sponsoring the program, and that will not be in violation of the law. But it should only be the name or brand name without ad information (i.e. quality, performance, where to buy, etc.). Sometimes sponsors deliberately register brands containing not only a word-mark but also an ad slogan such as “New Khortytsia is the absolute quality”, “Nemiroff is the absolute quality recognized by the world”. And even whole texts such as “You will spend the new year just as well as you celebrate it. The best goes to the table for the holiday! Khortytsia is the absolute quality!” This is done to circumvent the restrictions on advertising and, under the guise of promoting the brand, to convey to the consumer the characteristics of goods sold under the trademark.
Sometimes sponsorship is more profitable than direct advertising since the latter is subject to certain restrictions, while the former offers certain benefits. Article 13 of the law On Advertising contains restrictions on the amount of advertising on television (not more than nine minutes) and radio (not more than 12 minutes) during each hour of broadcasting. These restrictions do not, however, apply to sponsorship (part 6 of Article 13 of the law of Ukraine On Advertising). Sponsors can be mentioned innumerable times during the program.
It is not an option to never say brand names at all. Newsrooms of major TV channels and some other media outlets are prohibited from saying or displaying any brand and company names, images of goods, etc. This prohibition is usually encouraged by the advertising department explaining that it carries the danger of fines from the National Television and Radio Broadcasting Council of Ukraine and/or the Tax Service. Although the Independent Media Council is not aware of any cases of punishment for mentioning brand names in a media story.
After the abolition of the tax on advertising (not to be confused with ad services) in 2011, the Tax Service does not monitor it either. As for the National Television and Radio Broadcasting Council of Ukraine, it monitors how advertising laws are followed by television and radio organizations. The National Council monitors the amount of advertising in the first place, taking into account the restrictions provided for in Article 13 of the law On Advertising, i.e. ad time and telesales should not exceed 15% (nine minutes) of air time. The fact that someone said a brand name during a broadcast is unlikely to be any grounds for checking on the TV channel.
That said, “a commercial bank representative” or “a director of a gas station network” comments on events during TV newscasts. Such captioning does not provide comprehensive and detailed information about the speakers or experts. In some cases, e.g. a conflict, such vague captioning is a violation of journalistic standards of accuracy and completeness. After watching the program, the viewers will not be able to enter the company’s name in the search engine or check on it in the registers for more information. Therefore, when directly citing the source, we advise that, in addition to the name and surname, the place of work or other affiliation of the person be fully indicated in the context of the story. For instance, the place of work should not be indicated in the case of the person’s public activity. Instead, the public association to which this individual belongs should be named. But if someone comments on the situation as an expert in some field, their place of work should be indicated, and sometimes also their educational degree or academic rank (e.g. Dr., professor, etc.).
The law stipulates that advertising during television and radio programs must be clearly separated from other programs at the beginning and the end by employing audio, video, or combined means, captions, ad logos or the host’s comments using the word “advertisement”. Therefore, a brand name said by a journalist to uphold the standards of complete and accurate information is not in violation of ad laws. Hence, journalists have every reason to disagree with such requirements and insist on their plan of working in line with journalistic standards. However, a particular brand name matters not in all cases, and whether to say it or not is always a matter of context.
Another typical example of omitting the names of goods and services is the official messages from the authorities circulated by the media. Journalists reproduce messages word for word, e.g. “the police possibly came across a fraudulent scheme in one of the companies.” Here, journalists are faced with the presumption of innocence and, therefore, cannot reveal the names of the suspects, only their initials can be indicated, as explained by the Supreme Court. As for the company name, it is also necessary to be cautious about using definitions and avoid a direct accusation, indicating the name of the company only if its further activities threaten other people (e.g. a company whose activities have all the hallmarks of a Ponzi scheme). It should be noted that critical stories containing company names are allowed if they include reference to expert appraisals and evaluations and are in line with all other standards and balance of opinions.
Formulate a policy of saying brand and company names. It should be part of a public framework of editorial policy or code. This will enable the media to act consistently in such situations, as well as enhance transparency, which is important for building trust. When the media is exposed to unfair accusations in covert advertising, or, conversely, in ignoring the news of companies or brands, the most sensible tactics are to refer to editorial principles requiring you to act this way in this situation.
Mention brand names when needed, but do not advertise them. If it is necessary to mention brand names, do not draw attention to a specific brand or fill the story with ad information (price, quality, characteristics, where to buy, etc.).
For instance, in the story “Apple VS Samsung: who won the confrontation of brands”, two brand names are mentioned, Apple and Samsung, and the piece, therefore, does not draw attention to a particular brand allowing consumers to learn about different smartphone manufacturers.
If a story mentions a brand name, it is not necessary to separately state that it is not advertising.
Proceed from the premise of common sense and the specific character of the media publishing the material. Whether it is investigative or specialized, the details are very important: the names of offshore companies and business contact chains is what interests the audience. A glossy publication writing about the world of fashion or restaurants also cannot help mentioning the names of companies and products. At the same time, what matters is how you present it. An unbiased analysis of the pros and cons of a new car, a dark chocolate market review or a comparison of a smartphone lineup costing up to UAH 25,000 – all of this is not advertising if it is not meant to sell a specific car, chocolate bar or smartphone. If the story does not fail to mention problematic points or review a top model etc., it will not look like advertising.
Even if the newsroom received a gadget for testing or a car for test drives, it is worth mentioning possible alternatives when describing it, pointing out not only the pluses but also the minuses of such a product. Or make it a series of pieces about a specific type of product and its characteristics. Simply copying a company’s press release and making it a separate news item would be in violation of journalistic standards.
Rely on facts and figures. Conclusions based on objective and specific information cannot be considered advertising. If the media provide arguments in their stories, trust in them grows. The most motivated readers, viewers and listeners should be given links to where they can check the statistics. An ideal story about business is made of facts and figures, even if written in letters; it should be accompanied by extensive data, extracts from registers, official documents and responses to inquiries. If several companies and brands are mentioned in such a story, it will not be advertising. However, it is worth explaining why you chose those specific companies or brands for your story, as well as your selection criteria.
Pay attention to people. There are people behind each company, sometimes dozens or even thousands of them. Therefore, trying to reduce a company’s history to one name is a distortion of reality. One example of such “humane” stories about business is the article “Real love. How Iryna and Vladyslav Chechotkin are building a Ukrainian Amazon”(October 29, 2020, Forbes Ukraine), in which the characters of its founders are explored alongside the history of Rozetka.
Understand your purpose. Before writing a text or filming a piece, the author must have a clear idea of what effects she/he is willing to achieve. Telling the story of creating a unique product for Ukraine that conquered the world? Understanding a confusing business conflict? All of this is within the limits of what journalism does, and the story will not be advertising, because it does not aim to draw attention to specific goods and services.
Always mark ads. The readers, viewers and listeners will not be looking for hidden advertising in editorials if they are sure that all legitimate advertising in the media is properly marked (“advertisement” or “promoted content”). Sometimes advertisers insist on publishing ad materials without marking or with vague markings, such as (A) or company news, but one should never agree to that. It is a question of responsibility to the audience and relations with it, which is much more important for the media’s survival than the proceeds from separate advertising transactions.
Fact-check the experts. When evaluating a product or service, journalists will have to use the services of outside experts in one way or another. But large companies often have a pool of individuals acting as experts but actually promoting the interests of such companies. Checking on whether experts have any affiliation with a company in question is also mandatory and should be done by the same journalist in the process of preparing the story. For more details, read the IMC recommendation ”On the principles of inviting guests and captioning experts in information and analytical journalism”.
Consult lawyers. Any mention of a product or brand, and especially its shortcomings or imperfections can be perceived by the company as a manifestation of unfair competition. And although value judgments are protected by law, some of them can state facts and carry the risk of defamation for the media outlet and journalists. That is why a lawyer’s analysis of the risks should become a rule of decorum for the media caring about its reputation.
We are thankful to media lawyer Klym Bratkovskyi for his help in preparing this recommendation.
