Joanne Kong highlights some important points advertisers should take note of in the recently revamped Content Code.
The Malaysian Communications and Multimedia Content Code (“Content Code”) is the main source for industry self-regulation and contains governing standards and best practices for content dissemination within the communications and multimedia industry in Malaysia. The Content Code was recently revamped to address policy gaps on content-related issues that are new within the fast-evolving industry and was registered on 30 May 2022. This article seeks to cover key amendments in relation to advertisements disseminated through electronic mediums which include network, internet, online and digital platforms.
For clarification and reference, the Content Code includes various new definitions. Those more relevant to the advertising industry include without limitation the following terms:
(a) Corporate Social Responsibility (CSR)
(b) Digital Media
(c) Influencer
(d) Virtual Influencer
(e) Marketing Communications
(f) Online Marketplace
(g) Online Marketplace Operator
(h) Public Service Announcement (PSA)
(i) Social Media
Previous versions of the Content Code prohibited the portrayal of nudity and sex under any circumstances but under the revamped version, non-sexual content nudity based on art (e.g. travelogues with visuals of paintings and sculptures such as Renaissance paintings and Greek statues), information (e.g. programs on sex education) and/or sciences (e.g. programs on human biology) are allowed provided such content is not excessive or explicit in nature (i.e. not too prolonged, close up or gratuitous).
To ensure that the self-regulation standards are constructive and meet the expectations of consumers, the standard of advertisements have been raised from ‘reliable standards’ to ‘high standards’. In line with this, stricter standards for claims have been imposed on advertisers to hold ready documentary substantiation to enhance accountability for claims, testimonials and endorsements.
Additional requirements have been included in addition to previous general provisions. Prices of products and services must now be shown as all-in or final prices. For example, flight prices must include all compulsory charges such as sales and service tax, airport tax, airport fee, destination airport taxes etc. If such charges cannot be calculated in advance, this must be clearly stated and information on how they will be calculated must be included. Relevant to Buy Now, Pay Later schemes, any quotation of instalment costs must clearly state the total price and the instalment frequency as the cost of the individual instalments.
Switch selling techniques are specifically prohibited in that advertisers shall not market cheap or unavailable products to entice consumers into buying higher-priced or different items. Advertisements shall also not make any false claims that the advertiser is about to stop trading or move premises to deprive consumers of the time and opportunity to make an informed choice.
The previous list of unacceptable products/services which covered various items has now been deleted and replaced by catch-all provisions that advertisements cannot contain anything illegal or that might incite anyone to break the law, as well as anything that contravenes the ethical code of recognised professional bodies in Malaysia.
To cater to the growing popularity of influencer marketing and prevent consumers from being misled, advertisements which include the involvement of third parties such as influencers under a commercial arrangement must be clearly disclosed as being done in exchange for payment in cash or some other reciprocal arrangement. Such disclosure should be placed in the endorsement content with clear labelling such as the terms ‘Advertisement’, ‘Advertisement Feature’, ‘Ad’, ‘Sponsored’ etc. Vague or confusing terms such as ‘Sp’, ‘Spon’ and ‘Collab’ as well as standalone terms such as ‘Thanks’ and ‘Ambassador’ should be avoided. Disclosures in videos are required to be placed in the video itself instead of merely in the description while disclosures in live streams should be repeated periodically. If virtual influencers are used, this must be disclosed to prevent consumers being misled into thinking that they are interacting with real human beings.
Paid-for-space, material or programming in the style of normal editorial, material or programming should be advertised in a way which would not be mistaken as normal editorial, material or programming. Paid-for-space ads in news must include disclaimers or notifications through pop-up or push notifications, crawlers or other clear ways to indicate that the segment is paid.
In order to level the playing field of alcohol advertising, advertisements on intoxicating liquor are now allowed on electronic mediums with the exception of TV, radio and digital out-of-home (DOOH) advertising. Such advertisements are however subject to strict requirements such as those relating to governing age, prohibition for Muslims and the inclusion of responsible drinking messages.
It is provided that the use of religion in any form of advertising is generally prohibited to preserve the sanctity and sensitivities of religion which shall not be exploited for commercial gain or have a tendency to create fear or disharmony among consumers.
Provisions have now been included to ensure that advertisements in relation to financial products and services comply with the relevant laws i.e. Financial Services Act 2013, Islamic Financial Services Act 2013, Money Services Business Act 2011 and all other relevant legislations, rules, guidelines and regulations. Advertisers dealing with securities must comply with the Capital Market and Services Act 2012, Division 3 (Advertising Guidelines) of the Prospectus Guidelines.
Licensed gambling or betting companies which were previously prohibited from all advertising under Content Code are now allowed to do so under limited circumstances subject to compliance with the Common Gaming Houses Act 1953, Betting Act 1953 and other relevant legislation, rules, guidelines and regulations. Such companies are now allowed to issue Corporate Social Responsibility (CSR) and Public Service Announcement (PSA) messages subject to various specific requirements which include without limitation that such advertising must be done by a separate charitable arm different to the parent company. To ensure compliance, the Content Code provides extensive guidance in the form of various illustrations and examples. In the event a gambling or betting company sponsors an event held in Malaysia, it is allowed to promote the event itself but cannot directly advertise its gambling and betting products or services. In this regard, the company can only use the event’s logo and/or charitable arm logo which likewise must be different from its parent company.
This article only highlights the key amendments to the Content Code briefly and there may be other specific requirements advertisers should also take note of. For more information in relation to our media and advertising practice, please reach out to our team.
Joanne is a Partner at Wong Jin Nee & Teo. Her practice predominantly focuses on trademark prosecution, media and advertising clearance, and other compliance matters.