As traditional advertising methods face more scrutiny, brands are keen to find new ways to weave their products into content that feels more natural and engaging for viewers. However, this creates challenges in balancing commercial interests with the integrity of editorial content.

In any event, Ofcom’s purpose continues to be the protection of consumers from surreptitious advertising. The regulator therefore looks to maintain a clear distinction between advertising and editorial content by setting and enforcing detailed regulations that define how commercial references can appear in programmes. Ofcom’s latest decision on the topic goes to show that whilst the regulator is committed to consumer protection, it is also mindful of the challenges broadcasters face in balancing interests and remaining compliant.

On 20th January 2025, Ofcom published its most recent decision in relation to commercial references in programmes. The issue related to an international rugby match between New Zealand and Argentina, which was broadcast live in August 2024.  The match was transmitted on Sky Sports Main Event, a subscription sports channel for which Sky UK holds the licence. The live coverage of the match included promotional references to TAB New Zealand (TAB) –New Zealand’s statutory monopoly for sports betting – which caused Ofcom to investigate the incident in connection with a potential breach of UK broadcasting standards.

As part of the live coverage, former New Zealand rugby player Israel Dagg was being interviewed during a break in play. During his interview, the player looked at the cameras and addressed the viewers whilst making express promotional references to TAB’s gambling services, stating “[…] live betting that is available for you on the TAB app […]”, mentioning specific odds and even going as far as to encourage the audience to download the TAB app and place live bets ” […] take it, have a wee crack at it, […] so download it now […]“. The odds he referred to appeared also on screen, alongside relevant commentary.

The regulator was concerned about potential breaches of the Broadcasting Code by Sky UK, specifically considering:

• Rule 9.4, which prohibits the promotion of products, services or trademarks in programming; and
• Rule 9.5, which requires that references to products, services or trademarks must not be unduly prominent without editorial justification.

Product placement rules were also briefly in question but were dismissed in light of the fact that the case related to an acquired programme, produced outside of the UK, and Sky UK received no payment in relation to promotional references to TAB.

Sky set out various considerations for Ofcom to take into account:

• Live feed: the broadcast was a live feed which meant that Sky UK had limited opportunity to ensure that content complied with UK standards.
• No commercial relationships: Sky UK and the host broadcaster Sky Sport New Zealand, which is part of Sky Network Television Limited in New Zealand, were not connected entities. Moreover, Sky UK had no commercial arrangements with TAB, nor was it aware of any such deals on behalf of the host broadcaster.
• Human error: Sky UK normally checks the running order of programmes in advance and has processes in place to drop the feed during non-compliant content. However, Sky admitted that, in this instance, there was an internal oversight on their part regarding the non-compliant sequence.
• Consumer interests: Sky UK emphasised the importance of enabling UK viewers to access such content live and without delay, which can present many challenges for the broadcaster compared to non-live content.
• Mitigating factors: Sky UK insisted on the challenges of live event coverage, highlighting especially the lack of control when the UK broadcaster is not the host broadcaster or provider of the feed. Another difficulty highlighted by the broadcaster was that content often follows the regulatory framework of the host territory, in this case, New Zealand. Lastly, Sky UK clarified that it had no intention of challenging any rules –  it has procedures in place to assess running orders and it took steps to ensure that the non-compliant segment was removed from repeat broadcasts.

Ofcom held that Sky UK did facilitate references to a gambling product that were promotional and unduly prominent, without editorial justification, and was, therefore, in breach of both Rules 9.4 and 9.5.

However, the matter was resolved, in light of acknowledging the challenges faced by Sky UK in relation to live coverage of international sporting events, and the fact that Sky UK had processes in place to protect viewers and took action to ensure the content was not repeated.

It is important to note however that whilst the regulator appeared sympathetic to the challenges posed to UK broadcasters when transmitting live international broadcasts, it emphasised that ultimately such circumstances do not in any way relieve an Ofcom licensee of its duty to ensure that the that the content it broadcasts adheres to the Broadcasting Code at all times.