New advertising laws to tackle illegal ads and protect children online

The question

What measures are the Government planning to implement to protect consumers, specifically children, from illegal adverts online?

The key takeaway

 The UK Government has announced plans to implement new rules to crack down on illegal ads and influencer scams, with the objective of safeguarding consumers and protecting children online.

The background

 In January 2020, the Government initiated an inquiry into the regulation of online advertising, focusing on the effectiveness of the existing self-regulatory framework managed by the Advertising Standards Agency (ASA). Then in March 2022, the Government launched the Online Advertising Programme (OAP) to revamp the regulatory framework for paid online advertising, addressing both illegal and harmful ads and issues of transparency and accountability. Three options for future regulation were considered:

• continuing self-regulation with ASA oversight through the CAP Code
• introducing a statutory regulator to support self-regulation, and
• a fully statutory approach with a new regulator handling both regulation and enforcement.

Online advertising accounted for £26.1bn of the £34.8bn spent on UK advertising in 2022, making its regulation of upmost importance.

The development

 On 25 July 2023, the Department for Digital, Culture, Media, and Sport (DCMS) unveiled its response to the OAP consultation. The Government’s plan involves the introduction of new legislation aimed at addressing specific issues in online advertising, with the proposed laws honing in on advertisements that facilitate illegal activities, including fraud, illegal products, malware and human trafficking. Platforms and publishers alike will have to implement measures to prevent the dissemination of such content and advertising platforms may be compelled to share information with regulators and act proactively to prevent the spread of harmful content. They will also safeguard under-18s from exposure to ads for products and services they cannot legally purchase.

The new laws will apply only to paid-for online advertising, with social media firms, online publishers, apps, websites, adtech intermediaries and social media influencers (in relation to paid content) all falling within scope. The measures are intended to complement other digital regulatory reforms, such as the Digital Markets, Competition and Consumers Bill, the Data Protection and Digital Information Bill and the Online Safety Bill. The Government will continue to enforce other consumer protection laws through existing legislation, such as the Consumer Protection from Unfair Trading Regulations. The legislation will not affect the ASA’s jurisdiction over legitimate paid-for online advertising.

Why is this important?

 The introduction of new laws in online advertising is very significant and means that anyone involved in this industry will now have statutory obligations to combat illegal ads and shield under-18s from exposure to restricted products. That said, these laws are narrowly focused on addressing the most egregious forms of illegal advertising and the overall advertising framework will remain largely unchanged.

Any practical tips?

 More than three years have passed since the initial call for evidence and actual legislative changes are still pending. However, it’s still worth being alive to the proposed changes to come – namely the creation of statutory responsibilities to remove online ads for illegal activities and prohibit under-18s from exposure to products which they are unable to legally buy. So while detailed rules, player involvement and scope will be determined in a subsequent consultation, those involved in the online ad industry should begin to think now about the steps they can take to combat the harm of illegal ads.

Autumn 2023