EM Law | Commercial Lawyers in Central London
Application of UK digital marketing law and regulations
All advertising content whether published offline or online should:
- Comply with UK advertising codes of practice.
- Comply with consumer protection laws.
- Comply with product or sector specific laws and regulations.
- Not infringe intellectual property rights or give rise to claims in passing off.
- Not breach criminal laws.
Specific to online advertising, advertisers should be aware of the importance of:
- The relevant provisions of the UK Code of non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code).
- The information requirements imposed by the Electronic Commerce (EC Directive) Regulations 2002.
Application of the CAP Code to online advertising – digital marketing law
It is the CAP Code that mainly governs online advertising, although advertising through interactive television is governed by the UK Code of Broadcast Advertising (BCAP Code).
Primary responsibility for observing the codes falls on marketers. However, others involved in preparing and publishing marketing communications, such as agencies, publishers and other service suppliers are also subject to the codes.
The CAP and BCAP codes are independently administered by the Advertising Standards Authority (ASA). The ASA applies the CAP Code to:
- Advertisements and other marketing communications by or from companies, organisations or sole traders:
- on their own websites; and
- in other non-paid-for space online under their control,
- that are directly connected with the supply or transfer of goods, services, opportunities and gifts.
- Advertisements and other marketing communications directly soliciting donations for fund-raising activities.
- Online advertisements in “paid-for” space; that is, banner advertisements, pop-up advertisements and on-line video advertisements.
- Advertisements in e-mails.
- Online sales and prize promotions (including prize draws and prize competitions) wherever they appear online, for example, on companies’ websites or in their e-mail communications.
- Commercial classified advertisements.
- Advertisements transmitted by Bluetooth.
- Advertisements distributed through web widgets.
- Viral marketing e-mails, for instance, an e-mail with an amusing video clip attached that was initially distributed by an advertiser looking to boost the profile of a particular brand or service.
- Paid-for search listings; preferential listings on price comparison sites.
- Advertisements on electronic kiosks and billboards.
- Advertisements in electronic games and advergames that feature in display advertisements.
- Use of e-mail addresses for marketing purposes (for example, spam).
The following are outside the ASA’s remit:
- The content of personal e-mails or text messages.
- Items posted on bulletin boards and news groups unless placed or endorsed by a commercial company.
- Natural listings on a search engine or a price comparison site.
The CAP Code promotes the general principles that advertising should:
- Be legal, decent, honest and truthful (rule 1.1).
- Be prepared with a sense of responsibility to consumers and society (rule 1.3).
- Respect the principles of fair competition generally accepted in business (rule 1.6).
- Not bring advertising into disrepute (rule 1.5).
The ASA is extremely active in monitoring and adjudicating on online advertisements, the creativity of which often tests the boundaries of the CAP Code. CAP has also published numerous help notes and non-binding advice to assist advertisers to stay compliant with the code. These often cite relevant ASA rulings. For example, the following are relevant to online advertising
Electronic Commerce (EC Directive) Regulations 2002: information requirements – digital marketing law
Advertisers who operate their own websites or deliver marketing communications electronically should be aware that UK law imposes specific information obligations on websites and electronic communications. The Electronic Commerce (EC Directive) Regulations 2002 require all persons providing an information society service (ISS) to make available to the recipient of the service and any relevant enforcement authority, in a form and manner which is easily, directly and permanently accessible, information which includes the following:
- The name of the service provider.
- The geographic address at which the service provider is established.
- The details of the service provider, including his e-mail address, which make it possible to contact him rapidly and communicate with him in a direct and effective manner.
- Where the service provider is registered in a trade or similar register available to the public, details of the register in which the service provider is entered and his registration number.
Using digital marketing techniques
As the range of digital marketing techniques continues to widen, existing laws and regulations are constantly being tested to see if they are able to keep pace with technological developments. Some of these online marketing methods and the specific legal considerations they raise are discussed below.
Online behavioural advertising
Online behavioural advertising (OBA) is where digital techniques are employed to profile an internet user to be able to target specific marketing communications to him. A virtual profile of an internet user (sometimes known as browser generated information or BGI) can be built up through the use of specialist software, including the use of “cookies”, that track and analyse that individual’s journey around the web, including the searches he conducts, the content he views and the purchases he makes. The main legal concerns about this form of advertising relate to user privacy and compliance with data protection laws. In Google v Vidal-Hall and others  EWCA Civ 311, the Court of Appeal held that individual users who claimed that their data were collected by Google without their consent for the purposes of more effectively targeting advertising were entitled to seek damages, despite not having suffered any pecuniary loss.
Viral marketing – digital marketing law
Viral marketing, as the name suggests, describes a practice whereby an advertiser sends out a marketing communication with the intention that it will quickly spread, like a virus, to as many people as possible. In order to achieve this, the advertiser does either of the following (sometimes with incentives to ensure the success of the campaign):
- Invites the recipients of that communication to send it on to a friend or friends.
- Asks the recipient to provide the advertiser with the contact details (like an email address or mobile telephone number) of other potential recipients for the advertiser to then target.
Some of the main issues that arise with a viral advertising campaign relate to:
- The identification of the communication as an advertising campaign.
- The issue of whether consent from recipients, including those further down the line and remote from the advertiser, is required.
Consent from recipients – digital marketing law
Under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (Privacy Regulations) it is against the law to send unsolicited (that is, marketing that an individual has not specifically requested) electronic direct marketing without first obtaining an individual’s prior consent to do so. Advertisers must comply with the Privacy Regulations if they send an electronic marketing message or “instigate” someone else to send it. This would apply, for example, to text, email, some social networking messages, WAP and picture and video marketing messages.
Social media advertising
Companies who engage the services of individuals and celebrities to advertise their products and services through social media networks should be aware of the IAB guidelines on the payment for editorial content to promote brands within social media. These guidelines aim to help advertisers comply with the CPUT Regulations and the CAP Code, both of which prohibit practices that make false claims or create an impression that the trader is not acting for the purposes of his trade, business craft or profession or that the trader is a consumer.
For any questions you may have concerning digital marketing law contact Sharon Playford.