The UK government has published its response following its consultation about its Online Advertising Programme. The Online Advertising Programme reviewed the regulatory framework of paid-for online advertising to tackle the “evident lack of transparency and accountability across the whole supply chain”.
The government says that there were some clear themes amongst the responses, notably that the current self-regulatory framework is not equipped to tackle the spectrum of harms identified in the consultation sufficiently, and in particular, illegal harms. Most respondents felt that further powers of enforcement were needed to address criminally-motivated advertising. Many respondents highlighted the importance of further protecting UK internet users from high-risk advertising such as alcohol and gambling.
Therefore, the government intends to introduce a new and targeted regulatory framework for online advertising, which focuses on tackling illegal advertising (as defined under existing criminal provisions) and increasing the protection of under-18s online. The new framework will introduce statutory regulation of parties in the online advertising supply chain that are not currently regulated by statute for some types of illegal advertising (including fraud and scams) or for the protection of children and young people – namely platforms, intermediaries and publishers (PIPs). This will build on existing regulation of PIPs for unlawful adverts, such as misleading advertising.
It plans to legislate in two areas:
- First, regulation to govern illegal advertising content. This regime will address the role of PIPs in tackling illegal advertising perpetrated by bad actors. It will build on the stand-alone fraudulent advertising duties set out in the Online Safety Bill and the duties (currently) provided for under the Consumer Protection from Unfair Trading Regulations 2008 (which will be replaced by the DMCC Bill once passed).
- Second, the regulation to protect children against adverts for products and services that are illegal to be sold to them. This will boost the existing self-regulatory framework in protecting consumers and children and young people by improving transparency on who is placing advertising, who sees what adverts and why, and what action is taken to prevent bad adverts reaching consumers.
As the Programme’s scope is specifically focused on the most concerning harms online arising from illegal advertising and the protection of children from products and services illegal to be sold to them, neither regime will apply to, or affect the legislation of, advertising of high-fat, salt or sugar products.
Non paid-for advertising is considered out of scope. Paid-for advertising includes advertising where exchange for a payment or other reciprocal arrangement is in place, such as banner or display advertising, or influencers receiving free products for promoting advertising content.
The government says that it will work with regulators and industry, specifically PIPs to design a proportionate approach to setting responsibility’s on in-scope parties. The degree of control that a party has over the content and placement of ads, as well as its size and reach, are all important factors that will need to be considered.
To tackle illegal harms, PIPs will have a duty to put in place proportionate systems and processes to prevent users from being served illegal content through the adverts on their services, separate from existing duties under the Consumer Protection from Unfair Trading Regulations 2008. To protect children and young people online, PIPs will have a duty to put in place proportionate systems and processes to prevent under-18s seeing adverts for products and services that are illegal to sell to under-18s.
To complement the legislation, the government will be forming a Ministerial-led taskforce over the summer to drive forward non-legislative action, asking industry to work with the government on addressing illegal harms and the protection of children by:
- improving the evidence base on the scale of the threat and impact of illegal harms;
- building on existing voluntary industry initiatives focused on tackling drivers of illegal harms.
In due course, the government will launch a further consultation on the details of potential legislation including its preferred choice for a regulator to oversee the new illegal paid-for advertising rules. New legislation would not affect the ASA’s remit for the content and placement of legitimate paid-for advertising online.
