Five's Top Up promos breached regulations

A pop-up banner message promoting Top Up TV on Five in December 2004 breached broadcasting regulations, media regulator Ofcom ruled today.

Sixty-four viewers complained to the regulator about the banner that popped up and overlaid TV programmes. Text on the banner read "Your TV may now be able to receive more channels. Press the RED button to find out how," inviting viewers to press said button to receive more promotional material about the DTT pay-TV service.

The banner caused a storm of protest on the Digital Spy forums beginning on December 10. One user described it as "interactive spam," while another said that if he didn't already subscribe to the service, "it would annoy me enough not to subscribe."

The message only went away after a full 20 seconds - and instead of airing during ad breaks like other interactive commercials, it was overlaid over regular programming.

Five's strategy in dealing with the complaints has caused eyebrows to raise in the latest DS discussion on the matter. The broadcaster first said that the ad was run by the multiplex operator, but conceded that as it was broadcast as part of its licensed service, it was therefore done with its knowledge and agreement.

Next, the broadcaster claimed that the advert contained material that was "merely advisory," comparing it to the inclusion of a website address in a regular advert. Ofcom rejected this argument out of hand, saying that "the banner message indirectly promoted a commercial service within programming," therefore breaching a section of the regulator's Programme Code.

Five did, however, note that "some kind of comparable viewer advisory application would become increasingly necessary, particularly during the digital switchover process, when existing DTT box owners may need to reset their equipment to receive all channels."

At this, Ofcom drew the line between digital switchover promos and advertising. "While accepting that it may be necessary from time to time to inform DTT customers of new ‘free-to-air’ channels they can view by resetting their boxes, the purpose of this message was clearly to promote Top Up TV - an additional service which requires a subscription fee to view the extra channels offered," the regulator said, adding, "It was not transparent to viewers that the message formed part of an advertising communication until after they had clicked the red button."