Four key areas of law and regulation govern advertising in the UK.

• There is a strong self-regulatory system in the UK, governing advertising and marketing content (including most website content and social media posts published by businesses). The main regulator is the Advertising Standards Authority (ASA). Some types of content/media are excluded from the ASA’s remit, such as claims on packaging, sponsorship, press releases, and point of sale materials, but will still be regulated under points 2–4 below.
• Consumer protection laws, especially the Consumer Protection from Unfair Trading Regulations 2008, as well as other legislation, such as the UK GDPR.
• Intellectual property laws, particularly copyright and trade mark law, which affect creative treatments and the use of third-party trade marks in comparative advertising.
• Sector-specific laws that cover advertising for particular goods or services, such as financial services, gambling, tobacco, and alcohol (most of which have their own sector-specific regulators or relevant trade bodies).

The ASA is the key regulator. It cannot levy fines, but publishes its rulings on its website to drum up negative publicity. It has a few other practical sanctions it can levy in serious cases or in relation to repeat offenders, eg, it can require outdoor advertising to be pre-cleared, and may make references to other regulators such as Trading Standards or the Competition and Markets Authority (CMA) for court action. The CMA regulates based on consumer protection law and is to be given significant new fining and other enforcement powers under the Digital Markets, Competition and Consumers Bill, which is currently passing through the UK parliament. Trading Standards also play an important role in the enforcement of consumer laws. They can bring criminal proceedings in the Magistrates Court, who have the power to impose prison sentences of up to two years, and/or fines of up to GBP5,000 per offence. Ofcom can take action regarding breach of programming or sponsorship codes. For example, it has imposed large fines for breaches of the codes around premium rate phone line competitions.

The advertiser will be the key entity liable for deceptive advertising. However, the ASA often names in its rulings any agency, publisher/publication, or platform involved. Traders will be liable under consumer protection laws for the more egregious failings and potentially individuals within a trader if they are guilty of a criminal offence.

There are few definitions of “advertising”, but the Business Protection from Misleading Marketing Regulations 2008 define an advertisement as “the making of a representation in any form in connection with a trade, business, craft, or profession in order to promote the supply of goods or services, including immovable property, rights, and obligations”. When the ASA extended its remit to cover claims on brands’ own websites, it distinguished between “editorial” and “advertising” because “editorial” is specifically excluded from the ASA’s remit, however, these lines often become blurred, including in relation to affiliate marketing.

All television advertising (and some video-on-demand advertising) is pre-cleared by Clearcast, which is owned and funded by the television stations. The broadcasters are required by their broadcasting licences to ensure that all advertising is compliant with the BCAP Code and the applicable legislation. Therefore, the television stations need Clearcast’s approval before they will accept a commercial for broadcast. Clearcast’s approval will usually be obtained at script stage, and when the final cut is ready to broadcast. It is important to note that Clearcast approval does not affect the ability of the ASA to uphold any subsequent complaint, but the ASA will consult with Clearcast to discuss their reasons for approving the advertising. RadioCentre operates a similar system for radio advertising, and the CAA for cinema advertising. There is no general requirement on advertisers to obtain a licence to advertise. However, in certain regulated sectors a company must be licensed or registered by a regulator to offer their product or service. These include areas such as financial services, medicine and gambling.

Trade mark law is very important in the context of various types of advertising, including comparative advertising, which is subject to specific rules; and it will often be important to consider copyright law during the creation of advertising, particularly for parodies. When it comes to using the name or image of a famous person, they don’t have “image rights” per se under English law, but may be able to bring a claim for “passing off” or false endorsement if their name or image is used without permission in certain circumstances. If an individual’s personal data is used, there may also be a claim (or avenue for complaint) for misuse of their personal data.

The use of generative AI may lead to copyright issues – both in relation to the finished product, and the information and works used to train the AI.

The ASA is the UK’s independent self-regulatory body. It was set up by the advertising industry in 1962 to police the rules set out in the Code written by the Committee of Advertising Practice. Although Ofcom is the statutory regulator for broadcast advertising, it “outsources” this to the ASA. Therefore, the ASA is responsible for handling complaints about broadcast and non-broadcast advertising. These complaints may come from any source, including consumers, competitors, charities, Trading Standards officers, or non-governmental organisations. Even Members of Parliament (MPs) have made complaints to the ASA. The ASA also has the right to initiate its own investigations based on its own activity and research. The ASA has no legal statutory powers, but does have a legal backstop provided by the National Trading Standards services, as well as Ofcom (for broadcast advertising only) if an advertiser repeatedly disregards its rulings, and it may direct the matter to other regulators (such as the CMA and sector-specific regulators) when appropriate.

In addition to the right to complain to the various regulators and ombudsmen, consumers may have direct rights of action against traders. Consumers have a direct right of redress against traders who have engaged in misleading or aggressive practices in breach of the Consumer Protection from Unfair Trading Regulations 2008. Remedies include the right to unwind the contract; the right to a discount; and the right to damages. Usually, consumers will need to show that the trader engaged in a prohibited practice which caused the consumer to take a decision they would not have otherwise taken, for example, to buy a product or pay a certain amount. Consumers can also enforce rights under the UK GDPR and Data Protection Act 2018, including a right to compensation for damage caused by any breaches. However, only the courts can award compensation, so claims are rare. Consumers can also make subject access requests, requiring data controllers to provide information about the data held about them. Consumers can also complain to the regulator, the Information Commissioner’s Office (ICO). The ICO does not deal with individual cases but it can bring enforcement action against a data controller. In certain regulated industries, such as the legal and financial industries, consumers have a right to complain to various ombudsmen, eg, the Financial Ombudsman Service. This includes cases where insufficient or misleading information is given in advertising materials. Some ombudsmen have powers to award compensation to consumers.

The key issues in the past 12 months have related to environmental advertising as well as the advertising of gambling, cryptoassets, influencer disclosures (or the lack of them), use of AI, and scam advertisements.

The Obscene Publications Act 1959 makes it a criminal offence to publish, or possess with the view to publishing for gain, an article which, taken as a whole, has the effect of tending to deprave or corrupt persons who are likely to read, see, or hear the matter contained within. Case law has shown that the article must have a morally corrupting effect rather than merely shock or disgust readers. There are two main defences to the offence: innocent publication/possession; and public interest. The Indecent Displays (Controls) Act 1981 makes it an offence to display or cause or permit to be displayed any indecent matter in, or so as to be visible from, any public place. The offence does not include matter included in a television programme service, in films screened in licensed cinemas, or in art galleries or museums visible only from within the gallery or museum.

Stereotypes

As in many other countries, there is increasing concern about the use of potentially harmful stereotypes in advertising, including harmful gender stereotypes. There are specific rules guarding against “harmful” gender stereotypes, in various forms. There are also rules guarding against other forms of stereotypes that may cause serious or widespread harm or offence, including those based on race, ethnicity, age, sexuality, and other protected characteristics.

Royalty

The CAP Code states that marketing communications must not use the Royal Arms or Emblems without prior permission from the Lord Chamberlain’s office. References to a Royal Warrant should be checked with the Royal Warrant Holders’ Association. Members of the Royal Family should not normally be shown or mentioned in a marketing communication. However, Royal images may be used to advertise material such as a book, article, or film about a member of the Royal Family.

The turmoil at the top of the UK government with frequent changes of Prime Minister and other ministers in recent years has led to changes of emphasis in advertising regulation and enforcement, such as in relation to the regulation of promotions for, and advertising of, food high in fat, sugar, and salt. Regulations were due to be in force by now but have been delayed to 1 October 2025. The UK is due to have another general election before that date.

In the UK, the overarching principle is that advertising should be legal, decent, honest, and truthful. Advertising must not, and should not be likely to, materially mislead. Advertising should not omit material information which consumers need to make informed purchasing decisions. Information must be presented clearly. Material information includes the main characteristics of the product or service, the identity and geographic address of the advertiser or trader, the price of the product including taxes, delivery charges, payment arrangements, performance or complaint handling, and the consumer’s right to cancel if applicable.

Both consumer law and the CAP and BCAP Codes state that obvious exaggerations (puffery) are permitted. Puffery means claims that the average consumer who sees the claim is unlikely to take literally, including very obvious or humorous exaggerations. These claims do not require substantiation, save that if they make any implied claim that is capable of substantiation, such implied claim (even if not expressly stated) is likely to require substantiation.

In rare cases, as for health and nutrition claims relating to food, drinks and dietary supplements, claims may only be made if they are on a list of officially “authorised claims” and the relevant ingredient is found in sufficient quantity in the relevant product.

Advertisers must ensure that they hold documentary evidence to back all claims that are capable of objective substantiation, whether express or implied, before publication. If adequate substantiation does not exist, the ASA may consider a claim as being misleading and therefore in breach of the CAP/BCAP Code. If a comparative claim is made (for example, “best selling”), the advertiser must hold evidence that relates to both its own product and that of its competitor. The rules are not very clear about the general standard of proof required for substantiation, and the ASA may take a fairly subjective approach. However, there are detailed rules for claims relating to health, beauty, and slimming products. For example, the level of substantiation required for a “break through” claim for a cosmetics product will be very high, requiring a body of evidence of specific types.

The usual principles about misleading acts and omissions will apply to product demonstrations, and they will be governed by consumer laws and, when they appear within advertising, the CAP/BCAP Code. Products must normally work as shown and as described. Product demonstrations in advertising must not mislead consumers by exaggerating the capability or performance of a product, for example by showing it doing things it cannot actually do. If additional purchases or equipment will be required to make the product work, or to appear as it is shown in the demonstration, this must be made clear (for example, “batteries not included”). During a demonstration, it is important to ensure that the advertisement does not present rights given to consumers in law as a distinctive feature of the marketer’s offer. Also, advertisers must not suggest that their claims are universally accepted if a significant division of informed (or scientific opinion) exists.

Testimonials and endorsements must relate to the advertised product or service. Advertisers must hold documentary evidence that a testimonial or endorsement is genuine (unless obviously fictitious), and hold contact details for the person who gave it. Factual claims within testimonials must not mislead. Advertisements generally should not feature a testimonial without permission, but exceptions may be made for accurate statements taken from published sources. Marketing communications must not falsely claim that the advertiser, or other entity referred to in the marketing communication, is a signatory to a code of conduct, and must not claim (or imply) that they are endorsed by the ASA or CAP.

Health

Marketers should be aware that in some circumstances the use of testimonials and endorsements is excluded altogether. Namely, marketers may not use health professionals or celebrities to endorse medicines and may not make health claims that refer to the recommendation of an individual health professional.

Celebrities and Royal Endorsement

Advertisements must not use the Royal Arms, Emblems, or Royal Warrants without prior permission from the Lord Chamberlain’s office. Testimonials and endorsements by celebrities using social media must make clear whether they are paid for or part of an overall commercial arrangement with an advertiser.

Advertisements must state significant limitations and qualifications – how this is done in practice will depend on the context. Any qualification, such as a disclaimer or small print, can clarify or expand upon the main claim, but must not contradict it. Any disclaimer or other qualification or clarification must be expressed clearly and legibly. The exact requirements will depend on several factors, such as the medium in which the main claim appears. There are also timing requirements for on-screen disclaimers during television commercials (such as the minimum timeframes during which the text must be shown on screen). Disclaimers should be clearly visible to a normal-sighted person reading the advertisement once, from a reasonable distance, and at reasonable speed.

As in many other countries, there is increasing concern about the use of potentially harmful stereotypes in advertising, including harmful gender stereotypes. There are specific rules guarding against “harmful” gender stereotypes, in various forms. There are also rules guarding against other forms of stereotypes that may cause serious or widespread harm or offence, including those based on race, ethnicity, age, sexuality, and other protected characteristics.

Section 9 of the BCAP Code and Section 11 of the CAP Code apply to environmental claims by advertisers. In addition, the general rules about misleading advertising apply. The ASA and CMA have also provided extensive guidance on environmental claims. Generally, the basis of environmental claims should be clear and must be supported by a high level of substantiation as well as considering the whole life cycle of a product. The meaning of all terms used should be clear to consumers and marketing communications should not present their claims as universally accepted if there is a significant division of informed or scientific opinion. Both the ASA and the CMA are very active in dealing with misleading environmental advertising.

The ASA has published guidance saying that “dark patterns” encompass a range of misleading advertising practices that have long been regulated under the CAP Code, and some of which reflect practices that are banned in all circumstances under consumer protection law. The CMA has also been investigating the use of dark patterns (also known as online choice architecture) and at the time of writing had published a joint report with the Information Commissioner about the use of dark patterns to “nudge” people into providing personal data such as cookie walls. Examples of dark patterns include “drip pricing” and claiming that a sale is about to end when it is not.

Both the law and the advertising codes of practice include provisions about the recognition of advertising by children, sexualised imagery, child safety, credulity and unfair pressure, direct exhortation, promotions, age-restricted products and targeting, as well as particular sector considerations, such as for betting and gaming, alcohol, and food advertising.

Sponsors should be recognisable as such, both under sector regulation and under consumer protection laws. The CAP has issued guidance about the way in which advertisement features should be identified, including paid content by social talent (also known as influencers), and the ASA actively enforces those rules.

Advertisements should not use the word “guarantee” in a way that can confuse consumers about their rights. The advertisement must clarify any significant limitations to the advertised guarantee and promptly refund customers who make valid claims under an advertised money-back guarantee. Regarding country of origin, the geographical origin of the product or the advertiser should be disclosed and the advertising or the marketing communication should not take advantage of the designation of origin of a competing product. Products with a “designation of origin” should only be compared with other products with the same designation.

The rules on comparative advertising in the UK are set out in the Business Protection from Misleading Marketing Regulations 2008. Comparative advertising is therefore permissible in the UK, subject to certain conditions, in particular:

• comparisons must not mislead, and must compare products meeting the same need or which are intended for the same purpose, but they must not give the advertiser an artificial advantage;
• the advertisement must objectively compare one or more material, relevant, verifiable, and representative features of those goods and services, which may include the price; and
• advertisements must not discredit or denigrate or take unfair advantage of the trade marks, goods, services, activities, or circumstances of the competitor; and must not take unfair advantage of the designation of origin of competing product(s). Unqualified superlative claims may be treated as comparative claims against all competing products.

If an advertiser uses a third-party trade mark in a comparative advertisement, other than as is permissible to fairly and legitimately (and verifiably) compare two or more goods or services, the third party may have a claim for trade mark infringement against the advertiser. Furthermore, depending on the circumstances, the third party may be able to bring a claim for defamation, trade libel, malicious falsehood, copyright infringement, and/or passing off. If any of these claims are made out successfully, this could result in an injunction and/or claim for damages. The requirements for the legitimate use of a third-party trade mark in comparative advertising are derived from the Business Protection from Misleading Marketing Regulations 2008 and are also reflected in the CAP and BCAP Codes. The key consideration is that the advertisement objectively compares one or more material, relevant, verifiable and representative features of the products. In practice, most disputes concern whether the advertiser can substantiate its claimed advantage.

Complaints against non-compliant advertising are primarily heard by the ASA, which acts as a one-stop-shop for broadcast and non-broadcast advertising. In certain sectors, another regulator may take priority over the ASA (for instance, the FCA for non-compliant promotion of financial products and services) and it may be more effective to approach the sector-specific regulator as they often possess increased enforcement powers, such as the ability to levy fines.

For both broadcast and non-broadcast advertising complaints, the ASA requires the competitor to contact the advertiser and attempt resolution before they make a complaint with the ASA. The competitor should raise their concerns providing details of the claim and the factual basis of the complaint. The complaint should be signed by a person with an appropriate level of seniority, taking responsibility for the accuracy of the content of the complaint as well as the contact details of the senior employee authorising the complaint for the competitor. For non-broadcast advertising complaints, the complaint should also contain a screenshot of the advertisement if it is an online advertisement.

The competitor complainant should allow at least five working days for a substantive response. If the advertiser has not responded during that time, the competitor complainant may complain to the ASA. The complainant should provide a copy of the correspondence raising the complaint and any substantive response from the advertiser. If it would not be appropriate for the complainant to approach the competitor, the ASA may consider the complaint directly.

Sponsors can rely on intellectual property rights such as trade marks, passing off, and copyright laws. Certain provisions in the CAP and BCAP Codes may also help, such as those covering endorsements or misleading advertising. The Codes also prevent taking unfair advantage of a competitor’s trade mark. Consumer protection legislation may further assist. In terms of specific legislation, the UK has legislated for specific events such as the London 2012 Olympics and the 2022 Birmingham Commonwealth Games, which extended protection well beyond intellectual property rights. They included provisions on ticketing, “clean venue” requirements, taking control of local billboards and outdoor advertising sites, and preventing suppliers to an event from trading on their association with the event. The UK is also subject to IOC rules for its athletes.

The ASA has jurisdiction over marketing communications made in online non-paid-for space, including both advertisers’ own websites and social media platforms, such as Instagram, TikTok, etc. It also governs when advertisers use consumers or celebrities to promote their products using their personal social media accounts. The key requirement is that advertisements must be clearly identifiable as such. Advertisers also need to ensure that they do not inadvertently breach the blacklisted practice in the Consumer Protection from Unfair Trading Regulations 2008 of “falsely claiming or creating the impression that they are not acting for purposes related to their business” or “falsely representing oneself as a consumer”. This applies both to the advertiser’s staff as well as where an advertiser has paid a celebrity, influencer, or other person to promote their product via their own personal social media accounts. There must be a clear disclosure of the commercial relationship between the brand being advertised and the person making a Facebook post or writing a blog post. At the moment, the most acceptable way to achieve such disclosure is by using #ad in the post. The ASA takes a very strict view on this, with other hashtags such as #gifted and #affiliate being rejected, and the ASA and CMA have published joint guidance for influencers.

If an advertiser “adopts and incorporates” user-generated content (UGC) on its website or into its social media, then the advertiser will become responsible for that UGC and all the usual advertising rules will apply. The key issues when using UGC are the following.

• Is the advertiser soliciting UGC? If so, is the advertiser encouraging promotional-type UGC to be made, such as unqualified praise of a product?
• Is the advertiser moderating UGC? If posts are pre-moderated before being posted, then the UGC will be the advertiser’s responsibility. Post-moderation is more of a grey area.
• Is the advertiser editing or making UGC more prominent than it would otherwise be? If so, the UGC is more likely to be the advertiser’s responsibility.

The ASA expects key information to be communicated in the ad itself so ads need to be designed with this in mind and the space available needs to be considered. Anything that may affect a potential customer’s decision to buy a product or take part in a promotion needs to be in the main ad, such as geographical or age restrictions.

The Online Safety Bill, which is currently passing through the UK parliament, will impose new rules on fraudulent advertising. The UK government is also working on an Online Advertising Programme which may affect social media advertising. So far, it doesn’t appear that any social media platforms are banned in the UK.

Both advertisers and publishers must make clear that advertorials are marketing communications. An example would be by labelling them “Advertisement feature”. An advertorial is an advertisement feature, an announcement, or a promotion, the content of which is controlled by the marketer, not the publisher, which is disseminated in exchange for a payment or other reciprocal arrangement.

In 2021, the ASA began naming influencers on its website who have repeatedly failed to disclose when their social posts are advertisements/paid content. Any influencers named on the list will stay on the list for three months and will be subject to enhanced monitoring by the ASA.

In January 2022, the ASA also began taking out ads against influencers on Instagram to alert consumers of influencers who repeatedly failed to follow the rules. The ASA advertisement states that a particular influencer has been sanctioned by the ASA and warns consumers to be aware that products and services recommended by the influencer may have been paid for by brands.

In November 2022, the ASA made clear in a ruling that influencers should add “#ad” or similar wording to paid advertising posts to properly disclose the nature of their posts. The influencer’s paid Instagram post with a clothing brand was removed despite including in the caption that they had “created [the clothing] together” and referred to the clothing collection as “ours” followed by a link to the brand’s profile.

The ASA has published extensive guidance on influencer marketing due to the increasing popularity of this form of advertising. In response to the growing presence of hidden advertising on online platforms, the CMA issued guidance in November 2022 to enhance the transparency of online advertising particularly regarding influencers. The guidance sets out compliance principles for social media platforms, brands, and content creators, and reinforces that advertising that is not properly disclosed will not be tolerated. The guidance makes it clear that brands should monitor what their influencers are doing on their behalf. However, the primary liability is with the influencer. That said, the ASA has held that relying on affiliates to correctly target ads does not mean that the brand itself relinquishes responsibility for the promotion of its product. In another case, a gambling ad that was mistakenly sent by an affiliate marketer to a child was complained about and investigated. Although the brand contended that the affiliate marketer was responsible for the administrative error that caused the child to receive a gambling promotion, the ASA upheld the complaint and the brand was named in the ruling.

Misleading practices in respect of online reviews and endorsements has been an area of particular concern for the CMA. The UK government had signalled its intention to legislate on fake reviews but the new Digital Markets, Competition and Consumers Bill does not include provisions about them. However, misleading reviews will breach the Consumer Protection from Unfair Trading Regulations 2008 if posted by the traders themselves.

In 2012, the Office of Fair Trading (now the CMA) took action against Groupon, who were found to have run promotions on an unfair basis and to have engaged in “astroturfing”, allowing the posting of comments from an employee posing as a consumer. “Astroturfing” is the practice of hiding the identity of those who posted a review, testimonial, or communication, or paid or solicited the review, testimonial, or communication, to create the misleading impression that it originates from “grassroots” sources, ie, ordinary individuals.

While providing incentives to encourage people to leave genuine, unbiased reviews and testimonials could potentially be considered acceptable, directly and explicitly incentivising consumers to leave positive reviews or testimonials is likely to be considered problematic. For example, the ASA ruled against testimonials in an ad where the advertiser had offered to refund an amount of money back to the consumer for leaving a “nice review” and, similarly, where a promoter had added an additional entry in a promotion, and therefore an increase in the chances of winning, if the consumer left a “five star” review on their Facebook page.

The CMA has investigated platforms such as Amazon and Google for facilitating misleading reviews. It was assessing if they had breached consumer law by taking insufficient action to protect shoppers from such reviews on their sites. However, it has not acted against advertisers themselves. Facebook and Instagram agreed to take action to prevent misleading reviews appearing on their platforms.

When “adopting and incorporating” consumer reviews into advertising or marketing (including repeating them in advertisements), the advertiser becomes responsible for the truth of the claims made, as though they had made them themselves.

The key rules on direct marketing are in the UK GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR 2003) as well as consumer protection legislation and other codes of practice. To send electronic mail marketing to consumers (or sole traders/partnerships), marketers must:

• have the consumer’s specific consent to receive electronic mail marketing from them via the type of communication being used (eg, email or text), unless the marketer can rely on soft opt-in (which may be available if a trader is marketing its own similar products/services to existing contacts, provided that the consumers were given the option to opt-out); and
• comply with the UK GDPR in respect of any personal data processing.

If consent is required under PECR 2003, then, in practice, consent is also the appropriate legal basis for processing under the UK GDPR. If consent is not required under PECR 2003 (eg, if a marketer can rely on the soft opt-in), then it might be possible to rely on legitimate interests, depending on the circumstances. In addition, the Electronic Communications Act requires the commercial nature of an email to be clear.

The same legislation covers telephone marketing. Marketers should avoid sending marketing to consumers who have opted out or otherwise notified them that they object to receiving marketing from an organisation by screening the numbers against the Telephone Preference Service (TPS) and any internal “do not contact” lists. They should comply with the UK GDPR in respect of any personal data processing – consent is not required under PECR 2003 (provided the number is not registered on the TPS and the recipient has not otherwise objected to calls), so a marketer might be able to rely on legitimate interests under the UK GDPR. A marketer must state the identity of the caller; display the number (or an alternative contact number) to the person receiving the call; provide a contact address or freephone number if asked; and ensure that their marketing complies with any applicable codes of practice (eg, CAP Code).

The key rules on direct marketing are in the UK GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as well as consumer protection legislation and other codes of practice. To send electronic mail marketing to consumers (or sole traders/partnerships), marketers must:

• have the consumer’s specific consent to receive electronic mail marketing from them via the type of communication they are using (eg, email or text), unless they can rely on soft opt-in (which may be available if they are marketing their own similar products/services to existing contacts, provided that consumers were given the option to opt-out); and
• comply with the UK GDPR regarding any personal data processing.

If consent is required under PECR 2003, then, in practice, consent is also the appropriate legal basis for processing under the UK GDPR. If consent is not required under PECR 2003 (eg, if the advertiser can rely on the soft opt-in), then it might be possible to rely on legitimate interests, depending on the circumstances.

The Data Protection Act 2018 and the UK GDPR apply to advertisements on social media where the collection of personal data has played a role in an advertisement being visible to or targeted at a particular person. This might apply if, for example, personalised adverts are displayed based on browsing history, purchase history, or log-in information.

Where marketers process the personal data of children under 13 in relation to an offer of online services based on consent, they must obtain the verifiable consent of the child’s parent or guardian. Where marketers process the personal data of children under 13 for other marketing purposes (in other words, not in relation to an offer of online services) based on consent, marketers must obtain the verifiable consent of the child’s parent or guardian, unless they can demonstrate compelling reasons for relying on the child’s consent and that they have had particular regard to the child’s privacy rights. When collecting personal data from a child, marketers must ensure that the information provided to them is readily intelligible to a child. Marketers should avoid using the personal data of a child to create personality or user profiles especially in the context of automated decision-making that produces legal effects or similarly significantly affects a child. The usual ASA sanctions apply. However, the Age-Appropriate Design Code (Children’s Code) of the ICO may also apply, and the ICO can levy fines if it believes the UK GDPR or other data protection legislation has been breached. The Children’s Code contains 15 principles which online services need to follow.

Viral marketing methods such as viral email campaigns and refer-a-friend schemes have always been frowned upon by the Information Commissioner and can be difficult to undertake without risk of breaching the UK GDPR or the Privacy and Electronic Communications Regulations 2003.

The Gambling Act governs lotteries in Great Britain. Free prize draws are not regulated by the Gambling Act 2005. Care should be taken regarding the mechanics to ensure that there is no payment (such as requiring the use of a premium rate telephone number) so that the prize draws do not inadvertently become caught by the Act and so become a lottery. The Gambling Commission states that lotteries in Great Britain can only be promoted for charities or other good causes and not for private or commercial gain (some exceptions apply, for example, lotteries run by private clubs, resident lotteries, and workplace lotteries).

The promotion of lotteries is also covered under Section 17 of the CAP Code and Section 18 of the BCAP Code. The Codes are substantively aligned, providing that advertisements must not:

• portray, condone, or encourage gambling behaviour that is socially irresponsible or could lead to financial, social, or emotional harm or suggest that participating in a lottery can be a solution to financial concerns, an alternative to employment, or a way to achieve financial security.

The CAP Code requires that promoters must conduct their promotions equitably, promptly, and efficiently. The CAP Code also includes rules regarding the administration of promotions, for example, requiring that promoters make adequate resources available to administer the promotions. In addition, promoters must award the prizes as described in their marketing communications, normally within 30 days.

Where promotions are aimed at children, the Codes require that the advertisement makes it clear that adult permission will be required for a child to take part.

In broad terms, there is a distinction under the Gambling Act 2005 between contests involving skill and those relying on chance. A prize competition is a competition where success depends to a substantial degree on the exercise of skill, knowledge, or judgement, for example, in answering questions and solving puzzles. A competition could be classed as relying on chance (and therefore an unlawful lottery if there is a need to pay to participate) if it does not prevent:

• a significant proportion of people from taking part, or a significant proportion of people who do take part, from receiving a prize.

The Gambling Commission has published detailed guidance on prize competitions and free draws. Although the Gambling Act does not apply in Northern Ireland, the rules about prize draws are largely aligned and it is possible to run “no purchase necessary” promotions in all parts of the UK.

Prize draws and skill-based competitions do not need to be registered. There are licence requirements for certain lotteries – applications can be made to local authorities but these cases will be rare in the promotional context.

It is a blacklisted practice under the Consumer Protection from Unfair Trading Regulations to describe a product as “free” if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item. The CAP and BCAP Codes broadly mirror this rule. In addition, they provide that where receipt of the free product depends on buying another product, the price of that product may not be increased above its normal cost (and its quality must not be lower than normal). If marketers advertise packages of products, they must not describe any elements of that package as free if the consumer has no choice about the elements included in the package. In limited circumstances, if a feature has recently been added to a package and is not intrinsic to the package, it may be described as free.

Under the CAP Code, promotional marketing must state all significant conditions likely to affect a consumer’s decision to participate in the promotion. In the context of subscriptions and renewals of free trials, those terms are likely to include:

• whether a paid subscription starts automatically (after the trial) unless cancelled;
• the extent of the financial commitment if the subscription is not cancelled (during the trial); and
• any other significant conditions (for example, significant costs to participate).

Subscriptions will be regulated in more detail under the new Digital Markets, Competition and Consumers Bill.

The UK does not currently have special rules relating to the use of AI in advertising. However, normal IP rules will apply, particularly in relation to copyright. In August 2023, the ASA issued guidance saying that the CAP Code applies regardless of how an ad is generated. It said that to its knowledge, it has yet to rule on any ads using AI-generated images. However, if these were used to make efficacy claims, there is the potential for them to mislead if they do not accurately reflect the efficacy of the product – much in the same way as images that are photoshopped or subjected to social media filters might. Advertisers should consider this if they are thinking about using AI-generated images in their ads. Even if marketing campaigns are entirely generated or distributed using automated methods, they still have the primary responsibility to ensure that their ads are compliant. This is true for all stages of ad creation and distribution.

There is also a risk of some AI models amplifying biases already present in the data they are trained on, which could potentially lead to socially irresponsible ads, including harmful or offensive stereotypes.

The UK does not currently have special rules relating to the use of AI in advertising.

The UK does not currently have special rules about using chatbots.

Both the ASA and the Financial Conduct Authority take a very keen interest in cryptocurrency and the ASA has also ruled on several complaints about the advertising of NFTs. Cryptoassets are set to be regulated as financial services from October 2023 and advertisers will need to comply with the FCA’s rules. The new rules mean crypto firms must ensure that people have the appropriate knowledge and experience to invest in crypto. Those promoting crypto must also put in place clear risk warnings and ensure adverts are clear, fair, and not misleading. In addition, advertisers must comply with general CAP Code rules about misleading advertising and socially responsible advertising.

There are no special rules about the Metaverse but advertising can be regulated in the same way as in real life (if they come within the ASA’s jurisdiction). The ASA has produced guidance saying that existing principles can be applied to the Metaverse, and its guidance on in-game purchases is relevant, as is its guidance on advertising cryptoassets.

Broadcast advertisements for the following goods/services are completely prohibited:

• breath-testing devices;
• guns/offensive weapons or gun clubs;
• prostitution and sexual massage services;
• obscene material;
• products for the treatment of alcohol or illegal-substance dependence;
• some types of religious and faith-based advertising;
• some types of home working schemes;
• escort agencies (TV only);
• political advertising;
• teleshopping for certain medicinal or veterinary products or medical treatment for humans or animals;
• the acquisition or disposal of units in collective investment schemes not authorised or recognised by the Financial Conduct Authority, without the prior approval of BCAP; and
• R18-rated materials (as classified by The British Board of Film Classification which are works featuring consenting sex or strong fetish material involving adults) (radio only).

Broadcast and non-broadcast media: all forms of advertising are prohibited for the following:

• betting systems and products that facilitate winning a game of chance;
• pyramid selling schemes;
• infant formula;
• prescription-only medicines; and
• tobacco products (and some associated non-tobacco products, eg, rolling papers and filters).

There are detailed rules for other sectors which restrict advertising, but do not ban it altogether. For example:

• alcohol advertising must not link alcohol to sexual success or show actors who are or appear to be under 25 years old;
• gambling advertising must not suggest that gambling can be a solution for financial problems; and
• automotive advertising must not show cars being driven recklessly or at excessive speed.

Product placement is permitted in limited circumstances, where commercial references are integrated within programmes in return for payment. However, broadcasters must ensure listeners are always aware when promotions are paid-for.

The Ofcom Broadcasting Code sets out the rules that govern which types of products can be placed, which genres of programmes are permitted and how the products can be placed. Ofcom has also produced guidance on product placement. The broadcaster is responsible for compliance.

Product placement is prohibited in news programmes, children’s programmes, religious programmes, consumer affairs programmes, and current affairs programmes.

There are various categories of products which may not be the subjects of product placement:

• alcoholic drinks;
• HFSS foods or drinks;
• gambling;
• infant and follow-on formula;
• all medicinal products;
• electronic or smokeless cigarettes;
• cigarette lighters;
• cigarette papers;
• pipes intended for smoking; and
• any product, service, or trade marks banned from advertising on TV.

Lawful product placement must be signalled by the “P” logo.

Ofcom can levy significant penalties for infringements. In 2018, Lokkho Praner Sur TV ONE, a talent show, featured several visual references to a fruit juice drink. Ofcom held that there were no legitimate editorial grounds for the appearance of the product.

There are rules around a wide variety of products and services, including gambling, financial services, foods high in fat, sugar and salt, alcohol, weight-loss products, health and nutrition claims, and medicines. These are contained in both the CAP and BCAP Codes and sector laws and regulations.

The Communications Act 2003 prohibits political advertising, and Section 7 of the BCAP Code reflects this requirement. Under the CAP Code, marketing communications with the principal function of influencing voters in elections are exempt from the Code. Section 15 of the BCAP Code regulates advertisements involving faith, religion, and the equivalent.