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Digital Business Lawyer
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Age inappropriate ads: targeting the wrong audience online

The UK’s Advertising Standards Authority (‘ASA’) has ruled on a number of cases involving inaccurate user data being used by advertising algorithms resulting in age-restricted content being shown to under-age users through misplaced targeted advertising. In response to the risk of such misplaced advertising the Committee of Advertising Practice (‘CAP’) published new guidance in June 2017, entitled ‘Children & age-restricted ads online,’ to assist online advertisers in demonstrating that they have targeted age-restricted ads appropriately. Dan Smith and James Holland, of Gowling WLG, provide insight into navigating this sensitive area of online marketing and analyse the CAP’s latest guidance.

The UK’s children are spending more time online than they are watching television, according to an Ofcom report from late last year1. School children are devoting around 15 hours a week to viewing digital media and even pre-schoolers are clocking up around eight hours. But what exactly are they seeing on-screen in that time? The popularity of online platforms among very young audiences has inevitably fed into the debate about safety and the risk of children being exposed to age-inappropriate content.

The UK’s Code of Non-broadcast Advertising and Direct & Promotional Marketing (‘CAP Code’), published by CAP and administered by the ASA, seeks to address the issue by imposing placement restrictions on advertising for certain products deemed unsuitable for younger audiences, such as alcohol, gambling, e-cigarettes and, as from 1 July 2017, high fat, salt or sugar (‘HFSS’) foods. The rules on placement sit alongside separate rules on the content of advertising (which, in most cases, must not be likely to be of particular appeal to children). The rules typically state that advertising for these age-restricted products should not be directed at children, including through the advertiser’s choice of media, or placed in media if more than 25% of the audience is under 18 (or in the case of HFSS foods, under 16).

Beyond that, rules on responsibility and harm also play a part, where advertising, for any product, could cause distress to children or put them in danger, if placed where children are likely to view it. Errors in ad targeting have led to the ASA ruling on some fairly shocking misplacements, as, for example, when a pre-roll ad for a video game on YouTube, featuring flayed corpses strung on barbed wire, screened before a video for a Thomas the Tank Engine playset2. Elsewhere, the ASA has also ruled on a dating site (inadvertently) inviting children as young as nine to ‘chat’, ‘flirt,’ ‘date’ and ‘meet local singles’ in the cartoon-style app, D1D (Date One Direction)3.

Unfortunately, rule breaking has not always been clear and, however responsibly an advertiser has acted in the targeting of its advertising, it has, at times, seemed as if the ASA would always assume that a child may be looking at a screen over an adult’s shoulder. Rulings have not always seemed to strike the correct balance between advertiser, platform and parental responsibility and that has, inevitably, caused difficulty for those who are, quite properly, seeking to target adult demographics. The low point was the ASA’s ruling that an ad for Ladbrokes, featuring Iron Man, was in breach of CAP Code rules on appeal to children, even though it featured in an email campaign restricted to a mailing list of over 18s4 (the decision has since been reversed). The CAP has now sought to clarify the steps that responsible advertisers should take in its new guidance on Children and age-restricted ads online5 (the ‘Guidance’). The Guidance is intended to support marketers wishing to demonstrate that they have targeted age-restricted ads appropriately, minimising children’s exposure to those ads in social media and elsewhere online. It is part of a broader initiative from the CAP, following earlier guidance on ad placements in non-broadcast media6 (which includes an annex setting out useful audience measurement resources) and recognition of advertising by under 12s7.

Targeting and the dangers of inaccurate user data

Online advertising can be targeted in various ways - some of the most common methods are contextual targeting, where adverts for products are placed close to related content; time-based targeting, where adverts are scheduled for a specific time, such as during commuting times, or late at night; and geographic targeting, where nearby businesses are promoted. Advertising can also be re-targeted at users who have previously visited a website or searched using a particular keyword.

Demographic targeting - targeting adverts based on the consumer’s age, gender, location, annual income, social class etc. - is one means of seeking out the correct audience for an online ad.  Demographic information about users may be gathered from social media platforms, advertising technology businesses, online publishers etc. and may be inferred from user behaviour online or based on personal information provided by users, in ‘logged in’ environments.

The main social media platforms have age restrictions in place - to have an account on Facebook, Twitter, Instagram or Snapchat, you must register with your date of birth and be at least 13 years old. Advertisers targeting users of those platforms (or based on demographic information originating from those platforms) may therefore assume that their advertising will not be viewed by under 13s. However, the age restrictions imposed by the different platforms do not require age verification, and so it does not take a budding cyber criminal to set up a social media profile with an incorrect age (which may be 13 or older).

Advertisers relying on this demographic data (and only this data) to target consumers, may end up inappropriately, and inadvertently, targeting a more youthful audience than they intended. Once an ad has been served to an incorrect demographic, it’s unlikely that warnings about the content will be sufficient to successfully defend a complaint before the ASA. The ASA has previously ruled against an ad labelled ‘WARNING. The following film contains scenes of a disturbing nature. Viewer discretion is advised. Restricted. Suitable for viewers aged 15 and over8,’ on the basis that children could simply ignore the warning.

The new Guidance

The new Guidance seeks to address the issue by advising marketers to use additional targeting options to reduce the possibility of their age-restricted adverts being seen by children. The Guidance provides that advertisers should target their age-restricted adverts not just on the basis of data regarding the age of the audience (i.e. demographic data) but also on the basis of that audience’s interests (i.e. behavioural data).

To help to manage the risk of age-inappropriate advertising being seen by children who have lied about their age on social media or elsewhere online, the new Guidance requires advertisers and their agencies to take care to ensure that the audience’s interests align with their reported age. Where behavioural data indicates interests and behaviours strongly associated with children under the relevant age, then that audience should be excluded from the target audience for the advert (whether or not data exists suggesting the relevant users have given their ages as over 16/18). Users with a profile age of over 18, but whose behaviours indicate that they are younger, through, for example, their interest in teen-specific clothing or music, could therefore be excluded from the target audience for alcohol or gambling advertising etc. Users whose behaviours online provide support for the view that they are over 18 could be more safely targeted.

The level of care required from advertisers is determined by the age of the demographic which the advertiser is targeting and how close that is to the applicable age restriction. The example given in the Guidance is of an advertiser who is targeting alcohol adverts at 18-23 year olds - here there is a much higher possibility of inadvertently targeting an audience of those aged 17 and below. The Guidance acknowledges that an advertiser targeting much older adults, with an advert for, say, an expensive single malt whisky, is less likely to inadvertently target an audience of under 18s. The Guidance advises advertisers, when targeting their age-restricted adverts, to actively deselect interest information which would be strongly associated with users falling into a restricted age demographic. Where advertisers wish to target an advert on the basis of an interest that has a potentially broad age appeal, such as football, the Guidance recommends that this is combined with other interest factors unlikely to appeal to the restricted audience.

Applying the Guidance

The Guidance provides helpful tips on how to approach the targeting of age-restricted advertising online. Advertisers will want to be able to show that they have adopted appropriate due diligence in ensuring that their age-restricted ads have been targeted appropriately. That should now not only include information on audience demographics but also, wherever possible, audience interests. Advertisers will want to include appropriate obligations on their media and digital agencies and to ensure that they have a documented record, setting out the interest segments which have been selected for targeting (and why they are thought unlikely to appeal to an under-age audience), along with those which have been deselected (as possible indicators of under-age audiences).

As always, the biggest difficulties will arise in more marginal cases, where an advertiser is looking to target a youthful, but not a child audience. The new CAP Guidance is not that helpful in this regard - it refers to actively deselecting interest information about a music festival ‘aimed specifically at teenagers’ but it is, of course, far more likely that a music festival would be aimed at a broader range of ages.

While the Guidance raises the danger of targeting an ad based on interest in something with broad age appeal, such as football, the example it gives as a solution - targeting an ad at over 18s interested in both football and house buying - will not be of much comfort to those looking to target 19 and 20 year olds. It seems unlikely, in practice, that under-age 17 year old audiences will have radically different interests to age-appropriate university age and other young adult audiences. On that basis, it seems likely that we will continue to see complaints to the ASA where ads stray over the line. In the meantime, advertisers would be well advised to ensure that they are juggling both content and placement, as far as possible, to minimise the risk of appeal to, and viewing by, age-inappropriate audiences. The more likely the content is to appeal to children, the more conservative the placement/targeting should be, while a cautious approach to content ought to allow a little more risk on placement. Either way, it would be wise to have documented and responsible targeting practices in place, which can be produced to the ASA if things do go wrong.

Dan Smith Director, Head of Advertising

dan.smith@gowlingwlg.com

James Holland Trainee Solicitor

Gowling WLG, London

1. https://www.ofcom.org.uk/about-ofcom/latest/features-and-news/childrens-media-use

2. https://www.asa.org.uk/rulings/zenimax-europe-ltd-a13-229963.html

3. https://www.asa.org.uk/rulings/zoosk-inc-a14-278354.html

4. https://www.asa.org.uk/rulings/ladbrokes-betting-gaming-ltd-a16-340474.html

5. https://www.asa.org.uk/resource/children-age-restricted-ads-online.html

6. https://www.asa.org.uk/news/new-guidance-on-placing-non-broadcast-ads.html

7. https://www.asa.org.uk/news/younger-children-and-recognition-of-online-advertising.html

8. https://www.asa.org.uk/rulings/hutchison-3g-uk-ltd-a15-310695.html

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