Art Thou for Us, or for Our Adversaries? Communicative Action and the Regulation of Product Placement: A Comparative Study and a Tool for Analysis

Abstract

This study compares product placement regulation in the United States, Europe, Canada,
Australia, and Israel as it relates to the normative status of free speech and commercial speech and
to the inclusion of commercial content in noncommercial broadcasting in each of these countries
(or regions). It concludes that societies with a strong public broadcasting tradition, where clear
lines are drawn between commercial and noncommercial speech, tend to be less tolerant of the
practice of product placement, a form of undisclosed advertising inserted into broadcast content,
even when it applies to commercial broadcasting. Additionally, this Article concludes that the
extent to which lines are drawn between commercial and noncommercial speech in broadcasting
better predicts the extent of product placement regulation in a given country than the measures
taken to protect commercial speech. Drawing on the theories of “communicative action” and
“public sphere,” this study advocates drawing a clearer distinction between various forms of
commercial and noncommercial broadcasting so as to protect the public interest.