The UK Government has announced plans to introduce new rules on online advertising for online platforms, intermediaries, and publishers.  The aim is to prevent illegal advertising and to introduce additional protections against harmful online ads for under-18s.  Full details are set out in its recently published response (“Response”) to the Department for Culture, Media & Sport’s 2022 Online Advertising Programme Consultation (“Consultation”). 

The new rules would sit alongside the proposed UK Online Safety Bill (“OSB”), which addresses rules on user-generated content (see our previous blog here).  Since the EU’s Digital Services Act (which starts to apply from February 2024, see our previous blog here) will not apply in the UK following Brexit, the OSB and any new rules following this Response, form the UK’s approach to regulating these matters, as distinct from the EU.

Government Proposals

At present, ads in the UK are subject to a self-regulatory scheme overseen by the Advertising Standards Authority (“ASA”).  However, under this framework, the ASA does not have the power to address illegal harms arising from advertising.  

The Response outlines the Government’s intention to regulate illegal paid-for advertising, such as ads for fraud and scams, ads that lead to the spread of malware, and ads for illegal products and services.  (The Government states that other types of harmful but not illegal ads, which the Response categorizes as “offensive ads”, will not be in scope.)  The forthcoming legislation will also impose specific obligations to protect children and young people from adverts for products and services that are illegal to be sold to them e.g., alcohol, gambling, and vapes.

To achieve these objectives, the Response states that the Government will make platforms, intermediaries and publishers (“PIPs”) more accountable for adverts displayed on their services.  Further consultation will be undertaken to determine precisely which types of entities will be in scope. 

The Government intends to require PIPs to put in place “proportionate” systems and processes to prevent users from encountering illegal content.  This may include  putting mechanisms in place to detect unlawful ads quickly, and to share information with regulators about suspicious ad-related activity (to help enforce the existing Consumer Protection from Unfair Trading Regulations).  The Response suggests that the PIPs’ responsibilities would go beyond notice-and-takedown mechanisms, and may require them to adopt proactive measures.  PIPs will also be expected to prevent under-18s from seeing adverts for products and services that they are not legally permitted to purchase.

The Response acknowledges that these new rules may overlap with the OSB, which also regulates fraudulent ads on covered platforms, but it remains to be seen precisely how the two sets of rules will intersect.

Looking Ahead

The Consultation and the Response form part of the Government’s Online Advertising Programme, aimed at supporting the growth of the advertising industry. 

The Response indicates that the Government is currently developing legislation to implement the proposals referred to above, and will consult in more detail on those proposals in due course.  That consultation will address various matters including the scope of the proposed legislation, including whether it will apply to video-on-demand platforms.  The Response also states that the Government has appointed a Minister-led taskforce to support the aims of the Online Advertising Programme, which met for the first time in July 2023.  It remains to be seen what steps this taskforce will take.

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We will be monitoring developments and would be happy to assist with enquiries.

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Photo of Jane Pinho Jane Pinho

Jane Pinho is a partner in Covington’s Digital Media group in London. She works with media industry leaders with global operations, including streaming services, video games and interactive entertainment companies, and social media platforms. She has particular experience advising in relation to the…

Jane Pinho is a partner in Covington’s Digital Media group in London. She works with media industry leaders with global operations, including streaming services, video games and interactive entertainment companies, and social media platforms. She has particular experience advising in relation to the creation, acquisition, and distribution of digital content in the UK and Europe and in relation to the multi-territory launch, expansion, monetization and marketing of digital media products and services. She handles both transactional and regulatory compliance matters.

Jane is a co-chair of the firm’s Entertainment and Media Industry Group.

Photo of Mark Young Mark Young

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to…

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to incidents, including personal data breaches, IP and trade secret theft, ransomware, insider threats, and state-sponsored attacks.

Mark has been recognized in Chambers UK for several years as “a trusted adviser – practical, results-oriented and an expert in the field;” “fast, thorough and responsive;” “extremely pragmatic in advice on risk;” and having “great insight into the regulators.”

Drawing on over 15 years of experience advising global companies on a variety of tech regulatory matters, Mark specializes in:

  • Advising on potential exposure under GDPR and international data privacy laws in relation to innovative products and services that involve cutting-edge technology (e.g., AI, biometric data, Internet-enabled devices, etc.).
  • Providing practical guidance on novel uses of personal data, responding to individuals exercising rights, and data transfers, including advising on Binding Corporate Rules (BCRs) and compliance challenges following Brexit and Schrems II.
    Helping clients respond to investigations by data protection regulators in the UK, EU and globally, and advising on potential follow-on litigation risks.
  • GDPR and international data privacy compliance for life sciences companies in relation to:
    clinical trials and pharmacovigilance;

    • digital health products and services; and
    • marketing programs.
    • International conflict of law issues relating to white collar investigations and data privacy compliance.
  • Cybersecurity issues, including:
    • best practices to protect business-critical information and comply with national and sector-specific regulation;
      preparing for and responding to cyber-based attacks and internal threats to networks and information, including training for board members;
    • supervising technical investigations; advising on PR, engagement with law enforcement and government agencies, notification obligations and other legal risks; and representing clients before regulators around the world; and
    • advising on emerging regulations, including during the legislative process.
  • Advising clients on risks and potential liabilities in relation to corporate transactions, especially involving companies that process significant volumes of personal data (e.g., in the adtech, digital identity/anti-fraud, and social network sectors.)
  • Providing strategic advice and advocacy on a range of EU technology law reform issues including data privacy, cybersecurity, ecommerce, eID and trust services, and software-related proposals.
  • Representing clients in connection with references to the Court of Justice of the EU.
Photo of Ruth Scoles Mitchell Ruth Scoles Mitchell

Ruth Scoles Mitchell is an associate in the Digital Media Group in London. Ruth advises clients on digital media regulation, in particular in the context of international launches of digital products and content services. Ruth has advised various clients active in the technology…

Ruth Scoles Mitchell is an associate in the Digital Media Group in London. Ruth advises clients on digital media regulation, in particular in the context of international launches of digital products and content services. Ruth has advised various clients active in the technology space in this regard. Ruth also advises on video content licensing and commercial matters.

Photo of Paul Maynard Paul Maynard

Paul Maynard is an associate in the technology regulatory group in the London office. He focuses on advising clients on all aspects of UK and European privacy and cybersecurity law relating to complex and innovative technologies such as adtech, cloud computing and online…

Paul Maynard is an associate in the technology regulatory group in the London office. He focuses on advising clients on all aspects of UK and European privacy and cybersecurity law relating to complex and innovative technologies such as adtech, cloud computing and online platforms. He also advises clients on how to respond to law enforcement demands, particularly where such demands are made across borders.

Paul advises emerging and established companies in various sectors, including online retail, software and education technology. His practice covers advice on new legislative proposals, for example on e-privacy and cross-border law enforcement access to data; advice on existing but rapidly-changing rules, such the GDPR and cross-border data transfer rules; and on regulatory investigations in cases of alleged non-compliance, including in relation to online advertising and cybersecurity.

Photo of Sam Jungyun Choi Sam Jungyun Choi

Sam Jungyun Choi is an associate in the technology regulatory group in the London office. Her practice focuses on European data protection law and new policies and legislation relating to innovative technologies such as artificial intelligence, online platforms, digital health products and autonomous…

Sam Jungyun Choi is an associate in the technology regulatory group in the London office. Her practice focuses on European data protection law and new policies and legislation relating to innovative technologies such as artificial intelligence, online platforms, digital health products and autonomous vehicles. She also advises clients on matters relating to children’s privacy and policy initiatives relating to online safety.

Sam advises leading technology, software and life sciences companies on a wide range of matters relating to data protection and cybersecurity issues. Her work in this area has involved advising global companies on compliance with European data protection legislation, such as the General Data Protection Regulation (GDPR), the UK Data Protection Act, the ePrivacy Directive, and related EU and global legislation. She also advises on a variety of policy developments in Europe, including providing strategic advice on EU and national initiatives relating to artificial intelligence, data sharing, digital health, and online platforms.