UK regulation of online advertising - yet more changes on the horizon?
Geraint Lloyd-Taylor, Alex Kelham
online harms
ODPS, VSP, HFFS, AVMS, #AD…please excuse the alphabet soup but anyone grappling with online advertising regulation will be familiar with these terms. With multiple regulators (the ASA, CMA, OFCOM, ICO to name a few) adding to the murkiness, you may well welcome the idea of a review and consolidation of regulation in this space, or you may dread having to get to grips with yet another new regime.
If you have strong views, you now have a chance to raise them.
The UK government has published its "Plan for Digital Regulation". Perhaps reflecting the number of consultations, bills and reviews recently announced or under way in this area, this Plan seeks to pull together these strands and invites business to put forward their views. The extent of activity in this area is clearly illustrated in the annex to the Plan, which names no fewer than 22 different strategies, consultations and bills that are planned or in progress (including the Online Safety Bill, the Gambling White Paper and National Cyber Security strategy). The promise to "improve coherence and coordination across the digital regulatory landscape", therefore sounds very welcome but a little paradoxical.
Of most interest to the advertising sector is the confirmation that the government plans to review online advertising regulation, and intends to consult on this later in 2021.
The government has already announced new advertising regulations for foods high in fat, sugar and salt (HFSS) online and on TV, which will be enforced by Ofcom, and there are ongoing reviews of gambling regulation which is expected to increase regulation around gambling in Great Britain, including gambling advertising. A Parliamentary Inquiry into influencer marketing is also underway.
Perhaps most significantly of all for the advertising and marketing industry, the government is also planning a wholesale review of the regulation of online advertising in the UK, too. It alluded to this in its recent announcement on HFSS advertising, when it said that it was committed to reviewing the regulatory framework for services providing online advertising content. As part of this, the government said that it would consider regulation of the content and placement of advertising online, duties on service providers, and to what extent the current regulatory regime is equipped and funded to tackle the challenges posed by online advertising.
The government has now provided a little more detail in the Plan for Digital Regulation. It says that online advertising is at the "heart of the digital economy. As the primary source of revenue for major online platforms, it underpins the provision of key online services". However, the government also points out that the online advertising market presents new challenges for consumers, businesses, and society as a whole. It also raises questions over the "intensive collection, analysis and use" of consumer data, as well as the appropriateness and accuracy of targeting.
The government believes that regulation of online advertising needs to reflect the evolving market and the expectations of consumers and businesses, and it gives a very strong hint that big tech companies will be given responsibility for stopping misleading or harmful adverts on their platform. It suggests that new regulation should incentivise "compliance, companies proactively reducing harm, and rapid remedial action when rules are broken" and will consider strengthening the current framework, particularly in this area. This appears to echo the approach taken under the Online Safety Bill.
The government has also said they will also look at fraudulent and scam advertising, as well as other forms of potentially harmful or misleading online advertising.
The review of online advertising will clearly also affect the existing (and new) regulation of advertising on on-demand programme services (ODPS) and video sharing platforms (VSPs). The latter has only recently been introduced due to the implementation of the amended Audio Visual Services Directive and contains detailed rules (some not dissimilar to those that apply to the ODPS regime) on advertising on VSPs. However, Ofcom's recent consultation on its guidelines for VSPs in this area indicated that the new online advertising regime will supersede this.
The outlook is therefore one of sweeping changes to the regulation of online advertising.
The government's stated aim is still "proportionate regulation and, where appropriate, deregulation", which is "proportionate and coherent" and "more agile and joined-up" internationally. But those who were excited at the prospect of Brexit unlocking an era of less red tape, light-touch regulation and 'small government' are probably scratching their heads as the announcements and regulations come thick and fast.
The consultation on the Plan for Digital Regulation ends on 28 September 2021.
"The regulation of online advertising needs to reflect the evolving market and the expectations of consumers and businesses."
https://www.gov.uk/government/publications/digital-regulation-driving-growth-and-unlocking-innovation/digital-regulation-driving-growth-and-unlocking-innovation
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