This week, ministers will convene a new taskforce to gather more evidence around illegal advertising and build on industry initiatives to tackle harms and increase protections for children before the legislation is introduced. The taskforce will be chaired by Creative Industries Minister John Whittingdale and Mark Lund, the chair of the Advertising Standards Board of Finance (ASBOF). The group will include representatives from across the advertising industry, including the ASA, as well as tech trade bodies, consumer groups and the government’s Anti-Fraud Champion, Anthony Browne.

The Ministerial-led taskforce will drive forward non-legislative action, asking industry to work with the Government on addressing illegal harms and the protection of children by:

• improving the evidence base on the scale of the threat and impact of illegal harms;
• building on existing voluntary industry initiatives focused on tackling drivers of illegal harms.

This activity is part of the Online Advertising Programme. The Government has introduced tough measures to prevent fraudulent ads being published on social media and search engines through the Online Safety Bill. The Online Advertising Programme goes further by attempting to address the wide range of harms caused by paid-for online ads in the whole supply chain. 

In its latest announcement, the Government (technically, the Department for Culture, Media & for some reason Sport (DCMS)), says it will focus on:

1. Harms arising from illegal online advertising, such as fraud and scams, the spread of malware, and adverts for illegal products (including weapons) and illegal services. These harms are generally perpetrated by bad/illegitimate actors using advertising to undertake criminal activity.

2. The protection of children and young people from adverts for products and services that are illegal to be sold to them, e.g. alcohol, gambling, vapes and other products/services prohibited to be sold to them. This relates to the targeting and media placement and/or content of ads.

To bring in the relevant changes, the Government will conduct a further consultation on the details of proposed regulation, to ensure it is coherent, logical and can be designed and implemented in partnership with industry.  It plans to bring forward legislation, as soon as parliamentary time allows, to introduce a new regulatory framework for paid-for online advertising, focusing on the activities and overarching objectives mentioned above.

Following its Online Advertising Programme Consultation, DCMS has now issued its formal response. In its latest announcement, DCMS says that:

• It will work with the Online Advertising Programme regulator(s) to ensure that enforcement is proportionate and fair. It says it wants to incentivise good practice, rather than punish every breach. The Government recognises some of the positive steps the industry has taken, mirroring the measures proposed in the consultation; and will look to build on, rather than undermine, such action.
• To tackle illegal harms, it will place a duty on platforms, intermediaries and publishers (PIPs) to put in place proportionate systems and processes to prevent users from encountering illegal content by means of the service. It says it expects that fulfilling this duty will involve measures that make it harder for criminals to access and abuse the online ad supply chain, that detect and mitigate unlawful adverts quickly and efficiently, and that concern the sharing of information with regulators surrounding suspicious activity to support efficient and effective regulation and increase cyber resilience. These responsibilities will be proactive and go beyond notice and takedown. Adopting a systems and processes approach aligns with the principles of the government’s Plan for Digital Regulation to ensure that regulation is agile and flexible in order to actively promote innovation.
• To protect children and young people online, our legislation will place a duty on PIPs to put in place proportionate systems and processes to prevent under-18s seeing adverts for products and services that are illegal to sell to them. As above, we expect that fulfilling this duty will involve proactive measures that detect and mitigate problem adverts quickly and efficiently and measures concerning the sharing of information with regulators to support efficient and effective regulation.

The Government will consult on the details of regulatory powers for Online Advertising Programme regulators in a further consultation.

Misleading advertising

Currently, the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) prohibit unfair commercial practices by traders that are capable of distorting consumers’ economic decision-making, including misleading advertising. 

According to the latest response, there was general support from respondents for proactive action by PIPs to monitor and tackle the publication of misleading adverts and share information that helps prevent them. 

The CPRs establish a high level of consumer protection and apply to any business that is involved in the promotion, sale or supply of products to or from consumers. As such, all actors within the online advertising ecosystem – including PIPs – are likely to be covered by the CPRs and will need to take steps to comply. PIPs may therefore be required under the CPRs to take proactive measures to tackle the publication and dissemination of misleading content that harms the economic interests of consumers, irrespective of whether they created that content themselves. 

Where a business fails to take steps to comply with the CPRs, it will be at risk of action from enforcement bodies, including Trading Standards and the Competition & Markets Authority (CMA). The Government states that the CPRs remain the most appropriate vehicle for enforcement against misleading advertising at this stage, especially with the clarified position of their coverage of actors across the supply chain, including PIPs. In addition, the CPRs remain applicable to the fraud and scam content covered by both the Online Safety Bill and Online Advertising Programme. 

To the extent that such content comes within scope of the Online Advertising Programme – for example, fraudulent and scam content – the Online Advertising Programme is intended to be complementary to the CPRs and other legislation applicable to PIPs. DCMS will continue to work with the Department of Business and Trade, Trading Standards and the CMA to ensure PIPs are held accountable for misleading advertising. It will also keep enforcement of misleading advertising under review as part of any Online Advertising Programme post-implementation review to ensure that this remains an effective enforcement route for misleading advertising in the future.

Illegal advertising

When it comes to more serious types of illegal advertising, the DCMS highlights and recognises the important role of the self-regulatory system and the ASA in addressing a broad number of online advertising harms. They agree that building on the experience and expertise of the self-regulator and the existing framework will be important in ensuring appropriate regulation of online advertising moving forward. However, they note there was stakeholder agreement that the current self-regulatory system is not appropriate for dealing with all online advertising harms, in particular, illegal advertising. The DCMS says there was broad support for its proposal to backstop the ASA in discrete areas (even though these already exist in many areas, thanks to the CMA, Trading Standards and Ofcom).

However, the DCMS states that in areas of illegal advertising where illegitimate actors are involved, the ASA is not equipped nor empowered and therefore not an appropriate regulator and so direct statutory regulation is required. The Online Advertising Programme will put in place statutory regulation for illegal harms (e.g. fraud, scams and other illegal offences facilitated through paid for online advertising such as human trafficking) and the protection of children and young people. The statutory regulation will enable co-regulation. 

DCMS will follow the approach of the OSB in focusing our regulation around required systems and processes in place for regulated entities, and welcome support for regulatory and legislative coherence and the Government's overall aim to improve accountability and transparency across the online advertising ecosystem. 

DCMS "will look to harness expertise from within the advertising industry and support industry solutions through our non-legislative package, which will be taken forward in advance of legislation being brought forward, and in tandem to our further consultation on the legislative package which we issue in due course. This will include increasing awareness and collaboration, and working with other government departments, like the Home Office and the Department of Health and Social Care, where relevant, to build on efforts to address in-scope harms, such as fraud more broadly, or alcohol, gambling and vaping as part of efforts to protect children and young people from adverts for products or services illegal to be sold to them."

DCMS supports stakeholders’ views that it is important to ensure that there is proportionate intervention to bring PIPs into scope of regulation for more serious harms. It says it will look to place "more direct responsibility on PIPs for the ads served on their services while recognising the need to be sensitive in particular to the unique circumstances of press publishers and smaller publishers". It will also "reflect the government’s commitment to applying regulation proportionately, with sufficient evidence to support intervening, as illustrated in the smarter regulation to grow the economy and the principles of the Plan for Digital Regulation."

It says that "At its most basic, the Online Advertising Programme is primarily aimed at delivering the Plan for Digital Regulation’s second objective of keeping the UK safe and secure online. The way we have designed the Online Advertising Programme reforms, and how we intend to implement them (through technology-agnostic systems and processes), also supports the first objective - promoting competition and innovation. The non-legislative work of the Online Advertising Programme will make use of existing innovative industry-sourced solutions, driving adoption and continued improvements. Implementing non-regulatory measures in this way will give industry a clear opportunity to demonstrate its ability to successfully tackle online advertising harms through collaboration and innovation."