The UK Government has announced plans to introduce new rules on online advertising for online platforms, intermediaries, and publishers. The aim is to prevent illegal advertising and to introduce additional protections against harmful online ads for under-18s. Full details are set out in its recently published response (“Response”) to the Department for Culture, Media & Sport’s 2022 Online Advertising Programme Consultation (“Consultation”).
The new rules would sit alongside the proposed UK Online Safety Bill (“OSB”), which addresses rules on user-generated content (see our previous blog here). Since the EU’s Digital Services Act (which starts to apply from February 2024, see our previous blog here) will not apply in the UK following Brexit, the OSB and any new rules following this Response, form the UK’s approach to regulating these matters, as distinct from the EU.
Government Proposals
At present, ads in the UK are subject to a self-regulatory scheme overseen by the Advertising Standards Authority (“ASA”). However, under this framework, the ASA does not have the power to address illegal harms arising from advertising.
The Response outlines the Government’s intention to regulate illegal paid-for advertising, such as ads for fraud and scams, ads that lead to the spread of malware, and ads for illegal products and services. (The Government states that other types of harmful but not illegal ads, which the Response categorizes as “offensive ads”, will not be in scope.) The forthcoming legislation will also impose specific obligations to protect children and young people from adverts for products and services that are illegal to be sold to them e.g., alcohol, gambling, and vapes.
To achieve these objectives, the Response states that the Government will make platforms, intermediaries and publishers (“PIPs”) more accountable for adverts displayed on their services. Further consultation will be undertaken to determine precisely which types of entities will be in scope.
The Government intends to require PIPs to put in place “proportionate” systems and processes to prevent users from encountering illegal content. This may include putting mechanisms in place to detect unlawful ads quickly, and to share information with regulators about suspicious ad-related activity (to help enforce the existing Consumer Protection from Unfair Trading Regulations). The Response suggests that the PIPs’ responsibilities would go beyond notice-and-takedown mechanisms, and may require them to adopt proactive measures. PIPs will also be expected to prevent under-18s from seeing adverts for products and services that they are not legally permitted to purchase.
The Response acknowledges that these new rules may overlap with the OSB, which also regulates fraudulent ads on covered platforms, but it remains to be seen precisely how the two sets of rules will intersect.
Looking Ahead
The Consultation and the Response form part of the Government’s Online Advertising Programme, aimed at supporting the growth of the advertising industry.
The Response indicates that the Government is currently developing legislation to implement the proposals referred to above, and will consult in more detail on those proposals in due course. That consultation will address various matters including the scope of the proposed legislation, including whether it will apply to video-on-demand platforms. The Response also states that the Government has appointed a Minister-led taskforce to support the aims of the Online Advertising Programme, which met for the first time in July 2023. It remains to be seen what steps this taskforce will take.
* * *
We will be monitoring developments and would be happy to assist with enquiries.