Product placement 

• Not allowed for alcohol (Ofcom Code 9.13)

​

Sponsorship

• Sponsorship must comply with both the content and scheduling rules that apply to television advertising (Ofcom Code 9.17)
• Ergo, for under 18s, the 120 Index rule referenced under Television applies
• Where a sponsor is prohibited from product placing in the programme it is sponsoring, sponsorship credits may not be shown during the sponsored programme (Ofcom Code 9.23)

VOD

• Alcohol advertising not acceptable if more than 25% of the audience are U18
• Refer to CAP Advertising Guidance on Advertising VOD Services

RADIO

• Commercials must be centrally cleared: Radiocentre
• Advertisements must not be targeted at U18s or use a treatment likely to have particular appeal to them (BCAP 19.16.1)
• Advertisements must not include a person or character whose example is likely to be followed by those aged under 18 years or who has a particular appeal to those aged under 18 (BCAP 19.16.2)
• Targeting is assessed by radio audience (RAJAR) figures for the relevant time slot, the nature of the station / programming and whether the ad was scheduled when children are likely to be listening in large numbers (e.g. school run)
• Commercial arrangements are permitted (except around children’s and news programming) but have to be clearly signalled. See Section 10 of the Ofcom Broadcasting Code for details

• See The Ads that can't be skipped from RPC/ Lexology
• Product placement is prohibited except in the following programme genres:

​

1. Films (films made for cinema and films, including single dramas and single documentaries, made for television or other audiovisual media services
2. Series made for television (or other audiovisual media services)
3. Sports programmes and
4. Light entertainment programmes (Rule 9.6, Ofcom Broadcasting Code OBC)
    

• Programmes that fall within the permitted genres must not contain product placement if they are:
   

1. News programmes; or
2. Children’s programmes (i.e. those for viewing primarily by persons under the age of sixteen) Rule 9.7, OBC
    

• Product placement must not influence the content and scheduling of a programme in a way that affects the responsibility and editorial independence of the broadcaster 
• References to placed products, services and trademarks must not be promotional 
• References to placed products, services and trademarks must not be unduly prominent
• Other pp rules e.g. banned product sectors are shown in Section 9 of the OBC

From Ofcom Section nine: Commercial references on TV

• News and current affairs programmes must not be sponsored (Rule 9.15, OBC)
• Programming (including a channel) may not be sponsored by any sponsor that is prohibited from advertising on television. This rule does not apply to electronic cigarettes and refill containers which are subject to Rule 9.16(a) (Rule 9.16, OBC). Sponsored programming with the aim or direct or indirect effect of promoting electronic cigarettes and/ or refill containers is prohibited (Rule 9.16 (a), OBC)
• Sponsorship must comply with both the content and scheduling rules that apply to television advertising (Rule 9.17, OBC)
• A sponsor must not influence the content and/ or scheduling of a channel or programming in such a way as to impair the responsibility and editorial independence of the broadcaster (Rule 9.18, OBC)
• Sponsorship must be clearly identified by means of sponsorship credits. These must make clear:

1. The identity of the sponsorship by reference to its name or trade mark; and
2. The association between the sponsor and the sponsored content (Rule 9.19, OBC)

https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code/section-ten-commercial-communications-radio

• Programming that is subject to, or associated with, a commercial arrangement must be appropriately signalled, so as to ensure that the commercial arrangement is transparent to listeners (Rule 10.1, OBC)
• No commercial reference, or material that implies a commercial arrangement, is permitted in or around news bulletins or news desk presentations (Rule 10.3, OBC)
• No commercial reference, or material that implies a commercial arrangement, is permitted on radio services primarily aimed at children or in children’s programming included in any service (Rule 10.4, OBC)
• No programming may be subject to a commercial arrangement with a third party that is prohibited from advertising on radio. This rule does not apply to electronic cigarettes and refill containers which are subject to Rule 10.6 (a) -Rule 10.6, OBC. (Sponsored programming with the aim or direct or indirect effect of promoting electronic cigarettes and/or refill containers is prohibited (Rule 10.6 (a), OBC)
• The advertising content and scheduling rules that apply to radio broadcasting also apply to commercial references in programming (Rule 10.7, OBC)
• Commercial references that require confirmation or substantiation prior to broadcast must be cleared for broadcast in the same way as advertisements (Rule 10.8, OBC)

Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content

1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

1. Audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited
2. Audiovisual commercial communications shall not use subliminal techniques
3. Audiovisual commercial communications shall not:

1. Prejudice respect for human dignity
2. Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
3. Encourage behaviour prejudicial to health or safety
4. Encourage behaviour grossly prejudicial to the protection of the environment

4. All forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers shall be prohibited;
   shall be prohibited
5. Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
6. Audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
7. Audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below

2.  Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.

4.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5.  Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).

Article 4a is found here 

IARD

• The International Alliance for Responsible Drinking (IARD), which organisation includes most major alcohol producers, publish Digital Guiding Principles (DGPs) to supplement their Guiding Principles. The scope of the DGPs is “relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.” Members are here. 
• In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)

SOCIAL MEDIA 

Alcohol Advertising Policies from Social Media Platforms

https://www.g-regs.com/downloads/EUSocialMediaAdPoliciesAlcohol.pdf

TikTok is not included in the above; their rules are here

THE LAW

• Invitation to purchase: 'A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase.' Regulation 6 of The Consumer Protection from Unfair Trading Regulations 2008 
• The CAP Code covers the above under Section 3 misleading omissions, pts. 3.4 to 3.5, addressing ‘marketing communications that quote prices for advertised products’
• Some online channels are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Amends  were transposed into the Audiovisual Media Services Regulations 2020; placement and content rules are not significantly changed - a summary of the Directive’s amends to commercial communication content requirements is here and notes on the scope changes here; useful blog from Kemp IT law via Lexology here
• The regulation of advertising on videosharing platforms Ofcom December 2021. Sets out final arrangements in the context of amends to the AVMS Directive from Directive 2018/1808; see P.7 in particular. Also see VSPs: Ofcom's plan and approach October 2021
• if an advertiser operates their own website or delivers marketing communications electronically, the UK imposes specific information obligations on them via the Electronic Commerce (EC Directive) Regulations 2002 (ECR), transposing the EU Electronic Commerce Directive 2000/31/EC into UK law
• UK set to clamp down on Dark Patterns in E-Commerce. Burges Salmon LLP/ Lex April 11, 2023. Discusses CMA and ASA interventions and the role of the Digital Markets Competition and Consumer Bill and how the EU are addressing 'dark patterns.'
• There's a lot happening in regulation of the online space. This Digital regulation: overview of government activity from DCMS is helpful; some of the activity includes a review of OBA

THE ICO

The ICO is the national data protection authority - ‘the UK's independent body set up to uphold information rights.’ Their guidance on various forms of commercial activities on and offline is important and valuable. In this general online context, their Personal information online code of practice is most relevant; see channels below for more specific guidance

SOME EDPB GUIDANCE

• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR

​

AFFILIATE MARKETING 

• Defined as ‘a type of performance-based marketing where an affiliate is rewarded by a business for each new customer attracted by their marketing efforts, usually with a pre-agreed percentage of each sale. Affiliates typically place ads and links online that direct consumers to the website of a company.’
• See Online Affiliate Marketing Advice online March 2023 and Recognising ads: Newspapers and magazines (online and offline) Advice online 23 Mar 2023
• ASA Ruling on Associated Newspapers Ltd t/a MailOnline. Upheld; website (own site) 21 December 2022
• The ASA’s strict approach to affiliate marketing links and the need for advertising disclosures. RPC/ Lex commentary March 30, 2023
• ASA Ruling on DSG Retail Ltd in association w/Reach Plc. Upheld. Regional press 17 April 2019

​

C7. Marketing communications and children

• Parents and/or guardians should be encouraged to participate in and/or supervise their children’s interactive activities
• Personal data about individuals known to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide support for operational purposes of the website and who do not use or disclose a child’s personal information for any other purpose
• Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures, such as age screens, to restrict access to such websites by minors
• Digital marketing communications directed at children in a particular age group should be appropriate and suitable for such children

C10. Respect for the potential sensitivities of a global audience

• Marketers should strive to avoid causing offense by respecting social norms, local culture and tradition in markets where they are directing marketing communications. Given the global reach of electronic networks, and the variety and diversity of possible recipients, marketers should take steps to align their marketing communications with the principles of social responsibility contained in the General Provisions

Directive 2002/58/EC; Article 13

Unsolicited communications

1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Now repealed; GDPR applies 

General information to be provided

1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
    

(a) The name of the service provider

(b) The geographic address at which the service provider is established

(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner

(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register

(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority

(f) As concerns the regulated professions:
 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
 

2. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

Article 6

Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

1. The commercial communication shall be clearly identifiable as such
2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

Article 7

Unsolicited commercial communication

1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

• Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here

• For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications  

European Data Protection Board / Article 29 Working Party

• Working Document 02/2013 providing guidance on obtaining consent for cookies here
• Opinion 15/2011 on the definition of consent here
• May 2020 Guidelines on Consent under Regulation 2016/679 here

EASA Digital Marketing Communications Best Practice Recommendation. This document:

• Recognises the global nature of digital media and the need to develop a coordinated response across EASA’s membership
• Provides clear guidance to EASA’s SRO members on how to determine whether content under review is a marketing communication in the digital space
• Encourages local SROs and advertising industry representatives to ensure that the self-regulatory remit at national level is aligned with the recommendations set out in this document
• Identifies a non-exhaustive list of digital marketing communications practices which are recommended to be in the SRO’s remit
• Identifies forms of digital content which lie outside of SRO’s remit under all circumstances

The ICO’s Guide to the General Data Protection Regulation is here. Updates can be found here. Check privacy matters, and especially how GDPR applies to cookies, with your/ your client’s lawyers. Relevant EDPB guidance from March 2019 is Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. The government on 10 September 2021 went out to consultation with Data: a new direction; closes 19th November. And Is the UK getting tough on cookies? The ICO responds to the Government’s plans from Slaughter & May October 2021 addresses some potentially significant developments for cookie regulations. 

The Data Protection Act 2018 replaces the 1998 Act. The Overview of the Act explains the relationship with the GDPR:

(1) This Act makes provision about the processing of personal data. (2) Most processing of personal data is subject to the GDPR. (3) Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3). (4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive. (5) Part 4 makes provision about the processing of personal data by the intelligence services. (6) Part 5 makes provision about the Information Commissioner. (7) Part 6 makes provision about the enforcement of the data protection legislation.

Stay up to data: four key tips on using personal data for marketing. CAP News. 26 Jan 2023

• The CAP Code includes Section 10 Use of data for marketing, amended and re-named following the introduction of the GDPR and related consultation. This section now closely reflects and ‘has regard to GDPR and the Data Protection Act 2018 in the case of personal data, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 in the case of activities relating to electronic communications.’
• See from CAP Five top tips on our new rules on the use of data for marketing
• OBA rules have been incorporated into Section 10, having been removed from their previous home in Appendix 3. See below 

The DMA Code of Practice is here: https://dma.org.uk/the-dma-code

ONLINE BEHAVIOURAL ADVERTISING (OBA)

Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023

Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation.

Effective 19 January 2022

• OBA, like any other advertising, is subject to the rules in our earlier content section B, from self-regulation the CAP Code rules 
• Statutory provisions apply to all media; in this context, the Privacy and Electronic Communications Act also applies 
• The assumption for OBA is that the great majority of behavioural advertising is via ad networks, that they will deploy cookies of various types, the relevant versions of which are therefore third party cookies
• The ICO’s Guidance On The Rules Of Use Of Cookies covers third party cookies, from which: ‘third parties setting cookies, or providing a product that requires the setting of cookies, may wish to consider putting a contractual obligation into agreements with web publishers to satisfy themselves that appropriate steps will be taken to provide information about the third party cookies and obtain consent’
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 is significant guidance from the EDPB 
• GDPR lawful processing rules may need to be taken into account if data processing identifies individuals
• There's a lot happening in regulation of the online space. This Digital regulation: overview of government activity from DCMS is helpful; some of the activity includes a review of OBA Extract 'The government is committed to reviewing the online advertising ecosystem as part of DCMS’ Online Advertising Programme to ensure it is subject to appropriate regulation and that harms in advertising are minimised. Specific issues that may form part of the scope of the review include the use of personal and online behavioural data in the targeting of online ads, and ensuring robust levels of transparency and accountability in the regulation of online advertising with respect to the content and placement of online advertising. The review will include looking at the role of platforms in the online advertising ecosystem.'

Section 10 of the CAP Code provides specific OBA rules; extracts for this context are:

At the time of collecting consumers’ personal data from them, marketers must provide consumers with the following information (in, for example, a privacy notice), unless the consumer already has it:  

• The existence of automated decision-making, including profiling producing legal or similarly significant effects on consumers, referred to in Article 22(1) and (4) of the GDPR and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the consumer (CAP Code rule 10.2.12)

A good number of companies & organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA icon, 

https://www.g-regs.com/downloads/obaicon.png

which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. From the icon, the consumer is provided with a link to http://www.youronlinechoices.eu/, which has information on how data is used, a means to ‘turn off’ data collection and use, and a portal to connect with national self-regulatory organisations for complaint handling

• The International Chamber of Commerce - ICC - whose Advertising & Marketing Communications Code underpins much of self-regulation worldwide, also publishes OBA rules which can be found under Chapter C, Article C22 of the linked Code
• EASA, the European Advertising Standards Alliance, publish a Best Practice Recommendation on Online Behavioural Advertising

GDPR

• The introduction of the GDPR 2016/679 from May 25, 2018: in the event that cookies that identify individuals are deployed, then GDPR lawful processing rules apply. GDPR/ privacy issues should be overseen by legal advisors

Privacy Challenges For Digital Advertising, Particularly In Europe

Squire Patton Boggs 22 November, 2023

The Future Of Behavioral Advertising In Europe And The United States
InfoLawGroup LLP/ Lex. November 20, 2023

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022

Applicable regulation and opinion

• ICC Resource Guide for Self-Regulation of Online Behavioural Advertising (OBA)
• Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
• Algorithmic profiling & online behavioural advertising January 2022 is a thorough and helpful round-up from Gilbert and Tobin via Lexology of the way in which OBA works and some of the emerging regulatory pressures from, for example, the Digital Services Act, around the practice
• Provisions for Interest-based Advertising (IBA/OBA). These have been extracted from the 2018 ICC Advertising and Marketing Communications Code Chapter C and uploaded here; selected key rules below
• OBA, like any other advertising, is subject to Content rules. in this context, the principle source of international rules is the ICC Code linked above 

Application of notice and choice provisions

• Any third party participating in OBA should adhere to principles of notice and user control as set out below
• Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for OBA purposes is vital
• The following guidance provides further clarification for how these principles apply to OBA

C22.1. Notice

• Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices
• Such notice should include clear descriptions of the type of data and purpose for which it is being collected and an easy to use mechanism for exercising choice with regard to the collection and use of the data for OBA purposes
• Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices

C22.2. User control

• Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for OBA purposes and the transfer of such data to third parties for OBA. Such choice should be available via a link from the notice mechanisms described in footnote 9 (Note: footnote 9 does not appear to relate; waiting for feedback from the ICC)

C22.5. Data security

• Appropriate physical, electronic, and administrative safeguards to protect the data collected and used for IBA purposes should be maintained at all times
• Data that is collected and used for IBA should only be retained for as long as necessary for the business purpose stated in the consent

C22.6 Children

• Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent

C22.7. Sensitive data segmentation

• In general, companies should not create or use IBA segments based on sensitive data.Those seeking to create or use such IBA segments relying on use of sensitive data as defined under applicable law should obtain a web user’s explicit consent, prior to engaging in IBA using that information

Article 29 Working Party* documents

• Opinion 2/2010 on online behavioural advertising here
• Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising here 
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679

*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

• A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to the OBA Consumer Choice Platform - http://www.youronlinechoices.eu/ - a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
• EDAA has published their latest (2021) European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here

The rules outlined below will apply to any electronically stored messages, including email, text, picture, video, voicemail, answerphone (ICO Guide to PECR). ‘Electronic mail’ means any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service (Art 2 (1) PECR)

• Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender (Art 22.2 PECR)
• (3) A person may send or instigate the sending of electronic mail for the purposes of direct marketing where:
   

(a) That person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient

(b) The direct marketing is in respect of that person’s similar products and services only; and

(c) The recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication
 

• For the soft opt-in principle (above) to apply, the contact details must be obtained directly from the individual. In this regard, organisations cannot rely on SOI if they have obtained a marketing list from a third party. Indirect (third party) consent will need to have been obtained (see ICO DM Guidance; checklist here) 

E-COMMERCE INFORMATION 

From The Electronic Commerce (EC Directive) Regulations 2002, transposed from Directive 2000/31/EC, the electronic commerce directive

• A service provider shall ensure that any commercial communication provided by him and which constitutes or forms part of an information society service shall:

(a) Be clearly identifiable as a commercial communication

(b) Clearly identify the person on whose behalf the commercial communication is made

(c) Clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously; and

(d) Clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously.

(Art. 7 ECR)

• A service provider shall ensure that any unsolicited commercial communication sent by him by electronic mail is clearly and unambiguously identifiable as such as soon as it is received (Art. 8 ECR)
• Regulation 6 ECR covers general information to be provided by a person providing an information society service such as name, address, trade register and registration number, details of authorisations by supervisory bodies, contact details, price requirements etc.

CONSENT 

• Consent is also covered under our earlier Cookies and OBA section; in this context, PECR Regulation 22, set out earlier in this section, should be observed, but not necessarily in isolation; see below
• See ICO Guide to Electronic Mail Marketing and especially the ICO Direct Marketing Guidance, which has been updated for GDPR implications; their GDPR Consent Guidance is here
• IAB Transparency and Consent Framework: https://iabeurope.eu/transparency-consent-framework/

INDUSTRY CODES 

• CAP Code’s Section 10 on Use of data for marketing was renamed and amended in November 2018 to reflect the advent of GDPR. See from CAP Five top tips on our new rules on the use of data for marketing
• CAP Code Section 9: Distance Selling and Appendix I: the CPRs and BPRs sets out the legal framework, in the former’s case for Distance Selling, covered to an extent under our e-commerce sub-head in this section
• The Direct Marketing Association Code of Practice reflects the rules contained in PECR Regs; members of the DMA will be able to access Email Marketing Best Practice Guidelines

B2B

• The restrictions on email marketing set out in Regulation 22 PECR do not apply to corporate subscribers, including limited companies, limited liability partnerships and government bodies (Art. 22 (1) PECR). Sole traders, general partnerships and their employees are treated as consumers so rules for B2C will apply to them
• ICO DM Guidance confirms that the rules on consent, SOI, the right to opt-out will not apply to emails sent to companies and other corporate bodies. The only requirement is that the sender must identify itself, provide contact details and e-commerce information as provided above
• The GDPR update within the iCO Guidance states: If you are processing an individual’s personal data to send business to business texts and emails the right to object at any time to processing of their personal data for the purposes of direct marketing will apply. The right to object to marketing is absolute and you must stop processing for these purposes when someone objects. See our right to object guidance for further details

SMS / MMS

SMS and MMS are defined as electronic mail (Art 2 (1) PECR and CAP Code S.10). The principles above will apply to direct marketing sent by SMS and MMS

• In short, prior consent is required, subject to exemptions included under the B2C sub-head above
• Despite practical limitations of standard mobile phones and character limits, the rules will apply; in particular the e-commerce information and opt-out requirements. ICO PECR Guidance and The Department for Business Innovation and Skills (BIS) Guide to ECRs provide useful guidance on the subject:

5.3 The Regulations do not prescribe how the requirement to make information “easily, directly and permanently accessible” should be met. The Government recognises that technological constraints (e.g. the 160-character limit on mobile text messages) mean that the information may not readily be accessible by the same means by which the service provider transacts with recipients of his services. The Government envisages, however, that these criteria should be capable of being met if the information is accessible by other means (e.g. inclusion on a website)

• CAP Guidance on Mobile Marketing (not updated for new legislation) provides: Mobile marketers who do not have explicit consent must tell those whose details they have obtained in the course of, or in negotiations for, a sale that they can opt-out of having their data used for direct marketing purposes when they collect their data as well as every time, including the first, they send out future mobile marketing. They can use abbreviations so long as they are likely to be understood by the audience addressed. For example, the following is likely to be acceptable: “2STOPMSGSTXT’STOP’TO…”. They must allow consumers, with the minimum effort and at the minimum, unavoidable cost, to state they object to future direct marketing

Directive 2002/58/EC; Article 13

Unsolicited communications

1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Repealed; GDPR applies 

Directive 2000/31/EC: Article 5

General information to be provided in an e-Commerce context

1. In addition to other information requirements established by community law, member states shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

1. The name of the service provider
2. The geographic address at which the service provider is established
3. The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
4. Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
5. Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
6. As concerns the regulated professions

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

7. Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (29)
8. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

Section 2: Commercial communications

Article 6

• Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

1. The commercial communication shall be clearly identifiable as such
2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

Article 7

Unsolicited commercial communication

1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

..........................................................................................

EU guidance documents

• Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
• Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
  http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 
• November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
• Opinion 15/2011 on the definition of consent here 
• May 2020 Guidelines on Consent under Regulation 2016/679 here

PORTMAN GROUP 

• The Portman Group provides valuable advice in the context of owned websites in their Responsible Marketing in Digital Media. Section 2.4 deals with ‘User-generated content on company websites.’
• Briefly, UGC should either be pre-moderated or post-moderated. Companies are encouraged to adopt policies such as restricting the right to upload to registered members who have confirmed their date-of-birth, setting out clear guidelines on content, and promptly removing anything inappropriate
• Even though website content must not, in any case, appeal particularly to under-18s as a requirement under the Portman Group’s Code, it is incumbent on companies to use their reasonable endeavours to prevent under-18s accessing a brand website (PG DMC 2.2)
• The PG Code also deals with Use of Images of Under-25s on company websites, recommending that:

• Aside from the exceptions noted below, anyone shown on brand websites should be, and appear to be, over 25
• Images of 18-24 year olds may be shown provided that the image does not show them in a context which associates them with drinking (i.e. there is no suggestion that they have just consumed, are consuming, or are about to consume alcohol)
• Under-18s should not be shown in any marketing material unless it is in an incidental context and there is absolutely no suggestion that they are alcohol consumers (e.g. a family photograph)
• If a company creates a Facebook (or similar social network) fan group for a particular brand with membership restricted to users registered as aged over 18, there is a danger that some of those users will have chosen to show a picture of themselves as a child as their Facebook image and this image will be repeated on the fan group’s page when that user joins the group. The Portman Group Code Advisory Service considers that in these circumstances, provided there is no suggestion that the child was drinking in the photograph, this should not be seen as a breach of the spirit of the Code. Final interpretation of the Code, however, lies with the Independent Complaints Panel
• Companies are fully entitled to apply their own stricter standards to marketing material, e.g. to disallow images of anyone aged under 18 or under 25 in any circumstances

IARD

The International Alliance for Responsible Drinking (IARD), which organisation includes most major alcohol producers, publish Digital Guiding Principles (DGPs) to supplement their Guiding Principles. The scope of the DGPs is “relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.” Members are here. IARD in September 2021 published Responsibility standards for the use of social influencers in alcohol marketing (EN)

SNS

Alcohol Advertising Policies from Social Media Platforms 

https://www.g-regs.com/downloads/EUSocialMediaAdPoliciesAlcohol.pdf

TikTok is not included in the above; their rules are here

Vlogging Advertising Guidance

• Taken from the immediately above linked Advertising Guidance is CAP Guidance on Video Blogs scenarios, which covers ‘Some potential Vlogging scenarios and how to deal with them. This practical guide is a non-exhaustive list of scenarios with practical advice on how the rules apply.’
• Within the various scenarios is a video ‘Vloggers, bloggers and brands: a short guide to the ad rules': 
  https://www.asa.org.uk/advice-online/video-blogs-scenarios.html
• There are a number of CAP guidance papers on vlogging; these are shown in our later Section E, or in Section A Overview. A relatively recent publication is: 
  An Influencer's Guide to making clear that ads are ads CMA/ CAP. February 2020

Own Social Media
Extracts from the linked Remit document from CAP September 2016 below:

• ‘The ASA often receives complaints about company social media accounts, such as Twitter feeds, Facebook pages and Instagram accounts, to a lesser extent about Linkedin, Google+ and Pinterest pages and, at present, only very rarely about content on Snapchat
• While the Code covers some material on a company’s own social media channels it doesn’t necessarily cover everything in such space. The main principles for determining whether specific material on a company’s own social media channel falls within the scope of the code are the same as for a company’s own website, i.e. is the material directly connected to the supply or transfer of goods, services, opportunities or gifts or a direct solicitation of donations
• However, given the nature of social media and the role it plays in creating brand awareness and engagement, marketers should be aware that any content that bears a relationship to the products or services they offer has the potential to be considered directly connected and therefore within the ASA’s remit’
• Tweeting: Don’t get all in a Twitter about your #marketing. CAP News. March 2020
• ICO: Social networking and online forums – when does the DPA apply?
  https://ico.org.uk/media/for-organisations/documents/1600/social-networking-and-online-forums-dpa-guidance.pdf

RELEVANT RULINGS 

• A TikTok post on The Wave House’s account, @thewavehouse, seen on 25 October 2020. ASA Ruling on Prettylittlething.com. Upheld 07 April 2021
• ASA Ruling on Boohoo.com in association with Luke Mabbott. A TikTok post on Luke Mabbott’s account @lukemabbott featured a video of Luke Mabbott wearing two outfits. Upheld 10 February 2021
• A tweet that stated "#TheMasters has started! #yippee" and another which stated “Fill in the blank: I think Jordan Spieth will win…Majors in 2015” from gambling operators were both considered to be within the scope of the Code, because they were promoting the brand and commenting on an event on which the advertiser would be offering bets. They were therefore considered to be directly connected with services offered by the advertisers:

WHG (International) Ltd t/a WillHillBet, 17 June 2015

Hillside (UK Sports) LP t/a Bet365, 28 October 2015

THE LAW RELATED TO IDENTIFICATION/ AVMS

• The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), derived from the Unfair Commercial Practices Directive 2005/29/EC, provides in Schedule 1 that a commercial practice ‘in all circumstances considered unfair’ is:
   
  • Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial) Art. 11
  • Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

• The Audiovisual Media Services Regulations 2020 carry provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms , who must recognise the AVMS rules for commercial communications relating to recognisability; additionally, Part 4B clause 368Z1 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider

SOME EDPB GUIDANCE

• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR

Directive 2002/58/EC on Privacy and Electronic communications; Article 13

Unsolicited communications

1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
    

2. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

1. The commercial communication shall be clearly identifiable as such
2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

1. In addition to other requirements established by community law, member states which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, member states shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

EU Guidance/ opinion documents

• Opinion 15/2011 on the definition of consent here 
• GDPR 25/05/2018: Guidelines on consent under Regulation 2016/679 here
• Guidelines 8/2020 on the targeting of social media users adopted April 2021

• Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
• Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
• Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
• Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms

1. FACEBOOK

• https://www.facebook.com/policies/ads (also includes references to Instagram)
• branded content: https://www.facebook.com/policies/ads/restricted_content/branded_content

2. INSTAGRAM 

• https://help.instagram.com/116947042301556/?helpref=hc_fnav&bc[0]=368390626577968&bc[1]=835763516568404
• https://www.facebook.com/policies/brandedcontent/

3. TWITTER:

• https://business.twitter.com/en/help/ads-policies/introduction-to-twitter-ads/twitter-ads-policies.html
• https://business.twitter.com/en/help/troubleshooting/how-twitter-ads-work.html
• Promotions/ contests on Twitter:
  https://help.twitter.com/en/rules-and-policies/twitter-contest-rules

4. YOUTUBE: advertiser friendly content guidelines here:

• Ad Policy Overview
• Adult content in ads
• Advertisers' Live Streaming Programmes

• Paid product placements and endorsements
• Advertising on YouTube Kids
• Age targetting and ads 
• Youtube’s contest policies and guidelines
• Homepage advertiser Guidelines
• Tell a friend
• Unbranded ads or Brand Channels

5. SNAPCHAT:

• https://www.snap.com/en-GB/ad-policies/
• Contest/ promotions rules: https://support.snapchat.com/en-GB/a/promotions-rules

6. GOOGLE +

• Promotions/ Contests:
  https://www.google.com/intl/en_uk/+/policy/pagescontestpolicy.html
•  For advertising on the Google network:
  https://support.google.com/adwordspolicy/answer/6012382?hl=en-GB&ref_topic=1626336  /
  https://support.google.com/adwords/answer/6316?hl=en-GB​

7. TIK TOK

• Advertising guidelines

From the above (point 3.) Identification of marketing communications

• The Code requires marketing communications to be readily recognisable:
   

2.4 ‘Marketers and publishers must make clear that advertorials are marketing communications, for example by heading them "advertisement feature".

Advertisement features often mirror the format, style and typography of editorial articles contained in the same publication. It is particularly important, therefore, that readers can see at once that what they are looking at is not editorial but an advertisement feature. It could be clear through the context that the material is advertising but, if it isn’t, a label which makes clear the content is a marketing communication is likely to be required. Some examples of labels that are likely to be acceptable are: ‘Advertisement Promotion’, ‘Advertisement Feature’ or, in some online media, ‘#ad’

• The content of advertisement features should conform to all the requirements of the Code. It should be legal, decent, honest and truthful. Specifically:
   

3.1 Marketing communications must not materially mislead or be likely to do so

3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims

3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation

1. ASA adds former Love Islanders to non-disclosure webpage. August 2021. ‘We are adding five former Islanders who break the rules to our dedicated non-disclosure webpage, as part of continued action against influencers who fail to act transparently and who mislead their followers by not labelling ads in their social media posts. The ad rules are clear: it must be obvious to consumers before they read, ‘like’ or otherwise interact with a social media post if what they are engaging with is advertising.’ Click on link for more
2. Nike U.K. 4 September 2013. A tweet, by the footballer Wayne Rooney, stated "The pitches change. The killer instinct doesn't. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1". The ASA considered that in the particular context of a tweet by Wayne Rooney the wording of the initial statement was such that in combination with "@NikeFootball" and "#myground", the overall effect was that the tweet was obviously identifiable as a Nike marketing communication
3. Asda Stores December 2017. An advertorial for Asda, seen on the Mirror’s website www.mirror.co.uk, on 31 August 2017, appeared three-quarters of the way down a web page that began with an article titled “An actual Italian food theme park is opening in Italy and mamma mia hurry up and pass us our fork”. The advertorial was headed “Asda Partnership” in italic font which was the same size as the font used in the body of the article. The advertorial described Asda’s range of Italian food. Small text above the article title at the top of the page stated “Lifestyle > Travel > ASDA Partnership”. The ASA considered the term “Asda Partnership”, which appeared between the editorial and advertorial content, did not adequately convey the commercial nature of the advertorial content to consumers

​

• The IAB and Native advertising taskforce released the Native Advertising Playbook which provides recommended industry guidance for advertising disclosure and transparency for ad units most often described as ‘Native’; the disclosure principles reference FTC (US) procedures
• Content and native disclosure guidelines version 2 - February 2018 from IAB UK: 'These guidelines outline good practice for disclosure of content-based advertising and native ad formats online. They have been updated to reflect changes in online behaviour and media usage, and show how existing principles apply to new and growing advertising environments and approaches – such as influencer marketing
• IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers

The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), derived from the Unfair Commercial Practices Directive 2005/29/EC, provides in Schedule 1 that a commercial practice ‘in all circumstances considered unfair’ is:

• Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial) Art. 11
• Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer. Art. 22
• Regulation 6 of the CPRs provides: 1) A commercial practice is a misleading omission if, in its factual context... (a)the commercial practice omits material information, (b)the commercial practice hides material information, (c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or (d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise

Legislation

As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:

4.   In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

1. the main characteristics of the product, to an extent appropriate to the medium and the product
2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

• In the event of processing personal data (i.e. data that will/ can identify an individual) the required legal basis for processing that data may be subject to the GDPR; check privacy issues with specialist advisors

Guidance

Guidelines on consent under Regulation 2016/679 (May 2020)

............................................................................................................

 B4: 'Ambushing' of sponsored properties

• No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage
• The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public

B5: Respect for the sponsorship property and the sponsor

• Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position that might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
• The sponsored party should not obscure, deform or bring into disrepute the image or trade- marks of the sponsor, or jeopardise the goodwill or public esteem associated with them

B6: The sponsorship audience

• The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
• This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

B7: Data capture/ data sharing

• If an individual’s data are used in connection with sponsorship, the provisions of article 19  are applicable

B8: Artistic and historical objects

• Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
• Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them

B9: Social and environmental sponsorship

• Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship.
• Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
• Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications

B10: Charities and humanitarian sponsorship

• Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected

B11: Multiple sponsorship

• Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity
• In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
• The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship. The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors

Key extracts only

• Alcohol promotions should not appear in a medium if 25% or more of the audience is under 18 and promoters are expected to hold evidence that this is not the case. Particular care should be taken when using social media
• Marketing communications that include a promotion must not imply, condone or encourage excessive consumption of alcohol - see ‘Alcohol: Unwise or excessive consumption’ but this 'doesn’t mean that promotions involving alcohol are inherently likely to fall foul of the Code'
• See also August 2019 Insight piece on ‘bottomless’ / unlimited alcohol promotions here
• Including claims or imagery which directly condone or encourage excessive consumption of alcohol are very likely to be problematic
• Promoters should also ensure that alcohol is not offered, even inadvertently, to those under the legal drinking age. They should therefore satisfy themselves that their promotions are open only to those over 18 and that promotional alcohol goods are not accessible to those under age (for example, by getting participants to collect them through outlets where there is face to face contact). The ASA has upheld complaints where a promoter has not stated prominently that an offer is only for people aged 18 or over (EMAP Elan Ltd, 6 September 2006)

ASA ruling Camden Town Brewery March 10 2021

Legislation for sales promotions has been introduced in Scotland, with guidance here and includes the banning of advertising of drinks promotions in the vicinity (within 200m) of the shop when such promotions are "in connection with the premises"

• From the Cap Guidance document Alcohol: Promotional Marketing (Jan 2016) also linked above: The Alcohol etc. (Scotland) Act 2010 introduced a number of restrictions on discounts and special offers related to alcohol products. Promoters are therefore urged to seek legal advice before carrying out alcohol promotions in Scotland
• While CAP cannot give legal advice and the ASA is not responsible for enforcing this legislation per se, promoters who do not take reasonable steps to prevents ads for certain types of promotion appearing in Scotland or include a prominent disclaimer making clear that the promotion is not available in Scotland, could be considered in breach of the Code. See Alcohol, Guidance on Impact of Alcohol etc. (Scotland) Act on Alcoholic Drinks Promotions (non-broadcast and broadcast)

• CAP News piece on this issue from November 2019 here; plans were put on hold April 2023 

Promotional marketing: General. April 2019; this guidance gives a brief summary of the key points and where to get more information. Extracts are below (click on the links for more information) 

• Run promotions fairly and be clear on responsibilities
• Consider the suitability of the promotion and be responsible
• Be clear on the difference between a gift and a prize
• Meet the requirements regarding availability
• Be aware of the specific rules for “free” offers
• Provide terms conditions information at the right time
• Select winners and award prizes in line with the rules
• Plan ahead to avoid the risks of changing terms
• Keep track of changes to the Code
• Be aware of all the available guidance

​

Pricing and charges
'Helpful information on the advertising rules for the pricing of products and services and additional charges, not including legally required costs such as taxes or VAT'

Back in Black Friday – Getting your promotional offers in line. CAP News 20 Oct 2022

Promotional marketing: Prize winners Advice online 26 Oct 2021

Running prize promotions on social media Resource page/ checklist issued Oct 2021

Like, tag, comment, follow, and share to win! Selecting winners in social media promotions CAP News 02 Sep 2021

Six ways to win at Promotional Marketing CAP News 11 July 2019

 Guidance on ‘free trial’ or other promotional offer subscription models Advertising guidance Nov 2017

Promotional Marketing for the Win CAP News 15 Aug 2018

Promotional marketing: Competitions Advice online 7 February, 2023

 Promotional marketing: prize draws Advice online 24 Sep 2021

Keep your “free” claims problem-free. CAP News 30 Sep 2021

Keeping your “Free Trials” trial free CAP News 19 May 2022

Running chance-based prize promotions in Northern Ireland? CAP News 23 June, 2022. Last month, changes to Northern Ireland (NI) gambling law by the Betting, Gaming, Lotteries and Amusements (Amendment) Act (Northern Ireland) 2022 came into force. These important changes affect promoters running NI or UK-wide chance-based promotions.

1. Emma Mattresses. Website and poster; ruling March 2022, activity September 2021.Misleading savings claims and introductory offers which did not make clear that the lower price was an introductory price; misleading implication that discount offers were time-limited when using a countdown clock; significant information about offers, such as the start and end date, not made clear in ads. Other than that, fine.
2. I Saw It First. Fashion retail. Incorrect promotional pricing. March 2021. I Saw it First Ltd explained that the overlay was not applicable to the 75% off promotion and was shown in error on that day for a couple of minutes. I Saw it First Ltd further explained that they had added the overlay to a category and were removing the products that were no longer applicable. They stated that going forward they would ensure products were always moved out before promotional updates were completed.
3. An Instagram post by PrettyLittleThing on 10 February 2021, ruling September 1. The promotion was considered not to have been administered fairly and therefore transgressed rules 8.2, 8.14 and 8.24
4. A Cadbury's promotion on www.cadburyinventor.co.uk, seen on 19 July 2021, that offered consumers the opportunity to design their own chocolate bar, featured terms and conditions which included the judging process. The complainant requested the names of the judges on the panel but was not provided with them. Ruling here, and see 8.26 above 

There are some statutory requirements, largely reflected in self-regulation but not necessarily in this promotional marketing context, that apply. These are to do with pricing and with invitation to purchase, both from the Consumer Protection from Unfair Trading Regulations 2008

From Schedule I: Commercial practices which are in all circumstances considered unfair

• 5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply, or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
• 6.  Making an invitation to purchase products at a specified price and then: