With everything going on in the world and in the news, you would be forgiven for missing this announcement - but if you have anything to do with online advertising and marketing, it's BIG news.

The government has launched a public consultation on its Online Advertising Programme (OAP).

The content and placement of online ads is currently overseen by the Advertising Standards Authority (ASA) under a system of self-regulation. But the UK Government is concerned that rapid tech developments have transformed the scale and complexity of online advertising, leading to increased consumer harm.

Scam ads will come within the updated Online Safety Bill, and measures will be taken to tackle various harms, like ‘crypto jacking’ (ads that, when clicked, allow hackers to commit malicious cyber security attacks and mine for crypto).

Regulating online ads is not an easy task. The UK is the largest market in Europe for advertising and 4th largest in the world by ad spend.

To some, the UK’s current system of self-regulation appears to be under strain, with the ASA lacking accountability, rigour and enforcement powers - it has no authority over social platforms. To others, the ASA has kept order in a complex, creative sector, and this latest move is simply the product of a government with an insatiable appetite for endless new regulations and overbearing regulators.

Will influencer marketing be covered as part of the consultation?  

Yes.  When it comes to influencer marketing, there is a perception that the ASA has been playing whack-a-mole with non-compliant influencers, and that influencers, brands and platforms aren't taking their responsibilities as seriously as the ASA or CMA would like. 

The consultation prominently mentions that “Influencers failing to declare payment for promoting products could face tougher penalties”. 

The consultation also confirms that influencer marketing will be within the extended scope of the updated Online Safety Bill, which means that 'paid-for advertising' is not limited to payments made to the media owners (i.e. the platforms and search engines) themselves.

What are the options on the table?

The Department for Digital, Culture, Media and Sport (DCMS) will look at the current regulations and regulators, including whether they are properly empowered and funded - presumably focusing on the ASA.

It will also consider the whole supply chain and whether those within it should do more to combat harmful advertising, including social media platforms and search engines. This means advertisers, influencers, platforms, search engines, etc.

According to the latest announcement, a range of options will be considered, including:

- Strengthening the current self-regulation approach or creating a new statutory regulator with tough enforcement powers. [Note from the author: this seems like the easiest way forward, BUT, if so, stakeholders will need to have a very serious discussion about the ASA's rigour, consistency, processes and accountability].
- Rule-making powers such as setting mandatory codes of conduct and enforcing them with fines and the ability to block and ban advertisers which repeatedly break the rules.
- Increased scrutiny across the supply chain related to high-risk advertising such as the promotion of products related to alcohol or weight loss. Companies could be required to demonstrate they are taking care to protect users - for example avoiding targeting vulnerable groups.
- Increased scrutiny of advertisers that repeatedly breach codes of conduct and more checks on firms and individuals placing adverts and buying ad space. This could include requiring third-party intermediaries or platforms to make advertisers self declare an interest in placing high-risk advertising such as age restricted ads.
- Information gathering and investigatory powers such as the power to audit and request transparency reports from companies and request data from them.

The consultation states that "A self-regulatory approach would involve relying on the ASA’s existing framework enforced through their codes, including the new Online Platforms and Networks Standards (OPNS) proposal that they are developing to bring consistency to the way in which actors in the supply chain are held accountable."  If you have never heard of the OPNS, you are in good company, but it seems to be an attempt to impose standards on platforms; as media owners rather than advertisers, platforms are currently outside the remit and reach of the ASA.

The Online Advertising Programme consultation will be open for 12 weeks from Wednesday 9 March 2022. The government intends to respond to the consultation and outline proposals to reform online advertising later in 2022.

You can read more about the consultation here.

We will provide more commentary and analysis of these developments soon.

About the author: Geraint Lloyd-Taylor is a partner in, and deputy head of, our leading Advertising & Marketing Law team. Read more about his work and how to get in touch with him, here.