General

Programming Code for Free to Air Radio and Television Services in Kenya

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The new programming code gazetted by the the Communications Authority of Kenya (CA) is set to negatively impact revenues of TV and radio stations going by the advertising regulations.
The advertising regulations, contained in Section 13(2) of the code makes the following provisions that will eat into TV and radio profits in Kenya;

  1. A licensee shall ensure that ALL advertisements aired on its station contain at least 40 percent local content footage. This will negatively affect advertisements from multinational companies who shoot their footage anywhere in the world and use it globally including Kenya.
  2. Advertisements shall not feature, visually or orally, persons regularly presenting news and current affairs programmes, and the expression “News Flash” must not be used as an introduction to an advertisement, even if preceded by an advertiser’s name.
  3. All forms of advertising for cigarettes, cigars and other tobacco products shall be prohibited.
  4. Advertisements shall not exhort children to buy a product or service by exploiting their inexperience or credulity.
  5. Advertisements shall not directly encourage minors to persuade their parents or others to purchase or make enquiries about the goods or services being advertised.
  6. Advertisements should not unfairly attack or discredit, directly or by implication, any other advertisers, products or advertisements.
  7. Advertisements should not exceed seven (7) minutes in any 30 minutes of television broadcasting.
  8. Advertisements are not to be aired during live screening or broadcasts of national holiday ceremonies, parliamentary proceedings, and state of nation address. Broadcasts of such live events shall not be open for sponsorship.
  9. Advertising shall not exploit the special trust minors place in parents, teachers or other persons.
  10. Advertisers must exercise the utmost care and discrimination with regard to the content and presentation of advertisements transmitted during breaks within or near or adjacent to programmes designed for children.
  11. No television advertisement may include any technical device, which, by using images of very brief duration or by any other means, exploits the possibility of conveying a message to, or otherwise influencing the minds of, members of an audience without their being aware or fully aware, of what has been done.

The only way TV and radio stations will be exempted from abiding by the code is

where a broadcaster is a member of a body which has proved to the satisfaction of the Authority that its members subscribe and adhere to a programming code enforced by that body by means of its own mechanisms and such programming code and mechanisms have been filed with and accepted by the Authority

No media house in Kenya has such an body or association currently.
The code is derived from the scope granted to CA by the Kenya Information and Communications Act 1998, as amended (the “Act”). The Kenya Information and Communications (Broadcasting) Regulations, 2009, prescribe a Programming Code for free-to-air radio and television services setting out standards for the time and manner of programmes to be broadcast by licensed broadcasters under the Act.
Section 46H (d) of the Act mandates the Authority to ensure compliance to the Programming Code prescribed under the Act. This code is to be known as the Kenya Programming Code for Free-to-air Radio and Television (the “Programming Code” or the “Code”).
Perhaps one way to go about these provisions, and others in the programming code is to challenge them in court. Some of them are quite vague and advertisers will have to go back to the drawing board to reconsider their advertising content and features.
The new programming code takes effect from June this year.

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