ICASA has published new regulations governing advertising, infomercials and programme sponsorship.  The regulations are binding on Broadcasting Service Licensees and come into operation on 29 December 2023

On 29 June 2023, the Independent Communications Authority of South Africa (ICASA) published the Advertising, Infomercials and Programme Sponsorship Regulations, 2023 (the Regulations).  These replace the Advertising, Infomercials and Programme Sponsorship Regulations, 1999.

Their objectives are to:

(i) protect audiences from excessive advertising;

(ii) ensure advertising, infomercials and programme sponsorships are clearly distinguishable from normal programming; and

(iii) maintain the editorial independence of Broadcasting Service Licensees.

Advertising

The Regulations broadly define an advertisement as any material broadcast in visual and/or audio form, for which the Broadcasting Service Licensee receives consideration in cash or otherwise and which promotes the interests of any person, product, or service.

Despite this broad definition, the Regulations distinguish between advertisements and programme competitions, branded promotional spots, branded filler material, self-promotion promos and sponsorship elements in the form of on-air depictions of, or referrals to, any brand, product or name

In terms of the Regulations, a Broadcasting Service Licensee must ensure that the primary purpose of any programme competition, branded promotional spot, branded filler material, self-promotion promo or sponsorship element that it broadcasts is to (i) promote the broadcasting service licensee itself; or (ii) promote the programme concerned, rather than promoting the commercial interests of the person, product or service referred to in the course of the transmission.

Infomercials

Infomercials are distinguished from advertisements in that they are defined as (i) advertisements of more than two minutes duration; or (ii) advertisements which offer a direct product or service to members of the public in return for payment, usually containing a demonstration of the use of the product or service.

Broadcasting Service Licensees are prohibited by the Regulations from transmitting any infomercials during prime time or during the transmission of or breaks in the transmission of a children's programme.

A Broadcasting Service Licensee must also ensure that all infomercials it transmits are clearly labelled and presented as infomercials. No Broadcasting Service Licensee may transmit infomercials for more than two (2) hours cumulatively in a single day (this does not apply to dedicated infomercial channels).

Programme Sponsorship

Programme sponsorship is defined as the direct or indirect financing, whether partial or total, of the production or transmission of a broadcast programme by an advertiser or person to promote its own or another person's name, trademark, image, activities or product.

The Regulations require Broadcasting Service Licensees to ensure that they do not lose editorial control of any programme sponsorship.  In particular, Broadcasting Service Licensees may not enter into any sponsorship agreement which allows a sponsor to in any way influence the content or scheduling of sponsored programmes.

Broadcasting Service Licensees must ensure any product placement, names or logos of the sponsor are subordinate to the content of the programme material.  Any product placement or sponsorship must be clearly identified at the end of the programme, with a disclosure of the nature of the relationship between the sponsor and the Broadcasting Service Licensee.

Broadcasting Service Licensees may also not accept sponsorship for, or product placement in, any programme which relates to news or current affairs. 

However, the Broadcasting Service Licensee may accept sponsorship for weather forecasts and sports bulletins which constitute part of a news programme.

Written by Peter Grealy, Partner & Joshua Leroni, Candidate Attorney from Webber Wentzel