Out-Law News 2 min. read

UK considers reform to online advertising regulation

Intermediaries, platforms and publishers could be brought within the scope of expanded rules on online advertising that are under consideration in the UK.

The UK government is reviewing the regulatory framework for paid-for online advertising and has opened a consultation on possible options for reform. It said there is a need for intervention to address harms in online advertising arising from issues with transparency and accountability.

The government said it could introduce a new statutory regulator to oversee the sector, backed with new information gathering and audit powers. An alternative option it is considering is establishing a “backstop” regulator to deal with serious breaches or repeat offenders. The backstop regulator would support the work of the Advertising Standards Authority (ASA) which currently oversees compliance with UK advertising codes. A further option the government is exploring is bolstering the existing system of self-regulation of online advertising.

The ASA is currently developing “online platforms and network standards” and the government said it will “take into account” the effectiveness of those standards in improving accountability and transparency when deciding which options for reform to select.

According to the government’s consultation paper, the government could require advertisers to meet new record keeping obligations. These would support regulatory audits and investigations. Information such as campaign objectives, KPIs, and targeting instructions, as well as campaign delivery reports from suppliers, could be subject to regulatory inspection, the government has suggested.

Advertisers could also be obliged to declare their interest in placing “high-risk” ads to ensure those ads fall subject to closer scrutiny, while they could also be required to comply with new rules around how they target such ads to avoid reaching vulnerable groups.

Intermediaries could also face new record keeping duties to help further regulators’ understanding of harmful ads, the threats that intermediaries prevent, and “the habits of bad actors”. New identity verification and information sharing standards could also be imposed to help action be taken against serious or repeat offenders. An obligation on intermediaries to pre-vet ads proposed by repeat offenders is also under government consideration. Intermediaries could also be required to “uphold stringent advertising acceptance policies” and set publisher on-boarding policies too, according to the proposals.

In addition to new record keeping and reporting obligations, platforms could be placed under a new duty of care to minimise harm from online advertising. They could also be mandated to proactively review the content of ads categorised as “high-risk” before ad campaigns on their platforms go live. The government is also considering requiring platforms to “provide tools so advertisers can implement brand safety policy”, which would impact on ad placement.

For publishers, new measures in relation to record keeping, identity verification and customer empowerment tools are under consideration.

The government’s consultation is open until 1 June 2022.

“Our range of options varies from the current self-regulatory framework to more interventionist solutions that would involve introducing legislation and a statutory regulator for online advertising,” the government said.

“We want to ensure any action taken as a result of our consultation is proportionate to the problem at hand and recognises that there may be threats to this system in the future. It is our intention to draw on existing expertise and encourage and accelerate efforts that demonstrate capacity to build trust in online advertising, while recognising areas where we need to go further. We therefore ask that stakeholders provide evidence and argument for where and how they see harms being effectively addressed, but are also transparent and open in discussing where firmer measures could aid in combating some of the problems we have identified,” it said.

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