Advertising professionals highlight Article 98 of the Organic Communication Law and say that it did serve the purpose of creating greater sources of employment and encouraging the national production of advertisements. However, professors and experts in the field point out that in the case of articles 95 and 96, a specific set of rules or precepts was needed to allow for concrete figures to regulate or control compliance with the regulations.
In the Organic Law of Communication (LOC), the issue of advertising is regulated in 11 articles whose results they are analyzed 5 years after their validity and at a time when reforms are being processed in the National Assembly. Advertising professionals consulted by the Public Media criticized the lack of a clear regulation to regulate the national production of advertisements, referred to in articles 94, 95 and 96. Although they recognize that Article 98 has benefited the national production, considered that, in general, the regulation only remained in good intentions because it could not be controlled.
Of the group of articles that legislate advertising only 4 have been beneficial, according to Hugo Sanchez, coordinator of the career of Advertising of the Technological University Equinoccial. He explained that there are articles that did work, among them the 90 referring to the circulation of newspapers.
But there are also others who stayed “only on paper”. For example, the investment of 10% in local media (Article 96) could not be controlled, companies and advertising agencies did not provide or cover certain percentages. So, the law could never be measured. Samuel Yánez, teacher and publicist, questioned this article. He said that imposing a percentage simply because it was a local media was not appropriate.
He explained that the authorities should also take into account, for example, the audience levels or if the medium is in agreement with the product to be announced. Then, the complications within this article would not directly affect the advertising companies, but the advertisers. María Elena Aroca, account supervisor of the BBDO agency, indicated that some of her clients were reporting in the media that they did not welcome the target public that pursued their product.
In other cases, the medium was not a source of communication for the advertiser or did not provide a presence for the brand. “This causes the communication to expand towards where they do not want to go (the advertisers).
I understand that it is a support for the local media, but it can be counterproductive. ” Sánchez, however, stressed that the main problem was presented when monitoring advertising in local, regional or community media. “It was impossible because of the large amount of media and the extensive advertising schedule,” he said. To these problems it is added that advertising companies, in their desire for confidentiality, do not deliver all the information. “It was never sanctioned nor there was a call for attention,” Sánchez explained.
Another article that transpired with the validity of the LOC was 94, which guaranteed the protection of rights in advertising and propaganda. Thus, it was forbidden to advertise products harmful to the population or that affect children and adolescents. Aroca stressed that there were restrictions that affected the beginning of the enactment of the LOC, “because the advertiser has to be recursive to know where he would be present.” But this issue would have been more damaging to multinationals.
For Jorge Encinas, manager of Mediterráneo Comunicaciones, this article of the LOC should be reformed to establish time slots where advertising can be scheduled only for adult audiences. He added that in the case of public roads, there is no control of the products that would be harmful to the population. “There are harmful products that communicate,” he said.
He added that he agrees that there is no publicity in the vicinity of educational institutions. The impossibility of regulating advertising through the LOC is one of the main problems detected in the 5 years of the rule. Therefore, for Yánez, “a more credible and applicable regulation is necessary where parameters are given to measure the norm”.
Sanchez on the other hand stressed that “they had good intentions, but to carry out a control requires a much broader budget”. Aroca indicated that the LOC does boost the national talent, but also indicated that there are obstacles, for which he recommended a law “more permissive in the graphic part”. Despite the problems, all those consulted agreed that the LOC should be reformed, not eliminated, and that advertising in particular should be regulated. It stimulates the national production one of the articles that more impact produced, to say of its affections was 98, referring to the production of national advertising.
This explains that the advertising that is broadcast in the country must be produced by Ecuadorians, whose payroll is made up of at least 80% of Ecuadorian people and prohibits the importation of advertising produced by foreign companies. The sanctions for breach of the article establish that the person who orders the guidelines will receive a fine equivalent to 50% of what would have been collected for said publicity.
Roberto Sempértegui, secretary of the Association of Audiovisual Producers of Ecuador, believes however that it should not be repealed. He said that the article has generated growth in the audiovisual industry and sources of employment. He explained that in the case of a commercial they may need between 60 and 100 people to produce it.
Prior to the LOC, a large number of the audiovisual pieces came from abroad and left only simple animations for the country. “This did not allow the industry to develop.” With the implementation of the LOC, multinational companies were forced to make products in the country, “remakes of foreign pieces were made adapting them, and could be transmitted to other countries in the region,” he explained.
This also obliged those responsible for making the pieces to professionalize and compete for the quality of foreign production. The possible repeal of the LOC or, specifically, of Article 98, “would be a catastrophic issue” because job positions would be reduced, Sempértegui said.
Samuel Yánez highlighted this article and said that it has allowed national production to be encouraged. “It has favored that the actors of the publicity and specifically of the production, have greater income by work”. But he questioned whether the law does not specify who will control or regulate compliance with this issue.
For Aroca, joining the LOC has generated a good balance to maintain 80% of national production. This issue was discussed by Jorge Encinas, who clarified that it is difficult to establish and control 80% of national production. He considered that in the case of foreign brands, the rule should be more flexible or in these cases not intervene the law. What does the Cordicom say? Article 96 explains about investment in private advertising. For its regulation, the Council for the Regulation and Development of Information and Communication (Cordicom) was to establish a regulation on the conditions for distribution.
The Cordicom admitted that they have not issued related regulations due to “the existence of a legal vacuum in the current regulations and, the eventual elaboration of a regulation could cause subjective interpretations, opposed to what is determined in article 226 of the Constitution”.
They argued that there are three inconsistencies: the contradiction between the first and third clauses of Article 96; in LOC or its Regulation, local and regional media are not conceptualized; and the regulation states that the regulation to be drawn up is only for local media, leaving out the regional media. They clarified that “the legal uncertainty generated by this situation cannot be remedied through a regulation”, and that Cordicom seeks to correct inaccuracies. Article 98, according to Supercom, was faithfully respected both by the media and by the 89 advertising companies. (I)