Category Archives: Advertising

Ad blocker detection under the new proposed e-Privacy Regulation

The position regarding whether ad blocker detection is caught by the consent requirements under the currently in force e-Privacy Directive has always been contentious.

The IAB wrote a helpful summary last summer 2016 available here. Broadly speaking, depending on how the ePrivacy Directive consent requirements and the exceptions are interpreted, and depending on the technical implementation used to implement ad blocker detection, it’s arguable (at least as far as the European Commission and the Art 29 Working Party are concerned) that ad blocker detection would require a user’s prior consent. This is because, in most cases, it constitutes the accessing of information from a user’s device (i.e. the information being whether the user has implemented an ad blocker).

However, when reading through the European Commission’s proposal for the new e-Privacy Regulation published recently on 10 January 2017 and due to come into force in May 2018 along with the GDPR, you’d be forgiven for being a bit confused (as I am) about the intended position under the new Regulation regarding ad blocker detection.

Following publication of the proposed Regulation, EMMA, the European Magazine Media Association, and ENPA, the European Newspaper Publishers Association issued a press release which stated (amongst other things) that they:

…deeply regret that the proposed Regulation does not foresee more exceptions than for the purpose of first-party analytics. Exceptions to the proposed prohibiting rule on accessing and storing data on a user’s device would however be necessary for such purposes as ad-block detection…

However, on the same day the FT published an article which stated, amongst other things, that:

in a proposed reform of the law on Tuesday, the commission attempted to clear up legal confusion by deciding that detection of an ad blocker would not break EU rules.

The above interpretations of the new Regulation seem to conflict. So what does the Commission and importantly the new Regulation actually say?

Firstly, in the Q&A contained in the Fact Sheet published by the Commission, the Commission says the following:

…the proposal allows website providers to check if the end-user’s device is able to receive their content, including advertisement, without obtaining the end-user’s consent. If a website provider notes that not all content can be received by the end-user, it is up to the website provider to respond appropriately, for example by asking end-users if they use an ad-blocker and would be willing to switch it off for the respective website.

The above seems pretty clear that the Commission sees the checking by publishers to see if a device can receive ads, as not requiring consent. I interpret this as meaning the Commission are saying that accessing information from an end user’s device for the purpose of ad blocker detection is an exception to the rule in the Regulation that any accessing of information from end user devices is prohibited unless prior consent (amongst other things) is given. This statement from the Commission probably formed the basis of the FT article referred to above.

So on the basis of the above, why the deep regret from the EMMA and ENPA in their press release? Well, whilst the position from the Commission seems to be clear, the actual drafting of the Regulation itself is unfortunately not so clear.

The Regulation doesn’t refer expressly to ad block detection or ad blockers at all. This is unsurprising given its aim of being technologically neutral and futureproof etc etc. However, Recital 21 of the Regulation does say:

the mere logging of the fact that the end-user’s device is unable to receive content requested by the end-user should not constitute access to such a device or use of the device processing capabilities.

On the face of it you might think that the above Recital sets out the same position as per the principle referred to above in the Commission’s Fact Sheet. However, it’s not very clear.

The Recital refers to “content requested by the end-user” and in the Commission’s Fact Sheet, the Commission includes “ads” within such content. However, when someone implements an ad-blocker, they are not requesting “ads”. The precise reason why they have implemented the ad blocker is because they only want editorial and specifically do not request advertising. The Recital therefore implies that the mere logging of the fact that the end-user’s device is technically unable to receive the editorial requested by the user won’t constitute access to the device. However, if a publisher logs the fact that the user’s device is unable to receive other content which the user has not requested (e.g. ads) and almost definitely doesn’t want (i.e. because they have an ad blocker installed) then perhaps that does constitute accessing the device?

The other problem is that the point of Recitals is to provide guidance or background as to how the legislative provisions are to be interpreted. In most cases the Recitals also summarise the legislative provisions themselves. However, it’s not clear where the above principle is actually covered in the Regulations themselves.

The consent requirements for local data/device access are contained in Article 8. This states that the use of processing and storage capabilities and the collection of information from users’ devices is prohibited unless any of the grounds in Articles 8(1)(a)-(d) apply. Art 8(1)(b) provides for the user’s consent to be a valid ground. Art 8.1(d) gives “web audience measuring” (i.e. analytics) as another permitted ground. However, there does not appear to be an express ground permitting the collection of information from users’ devices to log the fact that the end-user’s device is unable to receive content requested by the end-user.

Perhaps this is because the Commission are not saying that this type of local access is expressly excluded from the prohibition by being a permissible “ground” (as per “consent” and “web audience measurement”) but rather that this type of local access doesn’t itself constitute local access at all. This doesn’t seem to make sense though because it does constitute local access – in which case why not just include it as an additional ground in Article 8(1)?

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Digital Product Placement: Monetising the Past

This is an abbreviated version of an article I recently wrote with my colleague Neelum Dass. The original version is available on the Bristows site here.

When the AVMS Directive came into force in early 2010, amongst other things, it relaxed the rules on product placement giving broadcasters new opportunities to earn revenue from advertising. In the UK, following implementation of the Directive, Ofcom amended the Broadcasting Code to address the new rules governing product placement. Under the amended Broadcasting Code, product placement has been permitted in UK television programmes since 28 February 2011 as long as it complies with the relevant conditions.

Products can’t be placed in news or children’s programmes or in religious or consumer advice programmes. Product placement is however allowed in films, TV series, entertainment shows and sports programmes subject to a number of conditions. A range of products can be placed but cigarettes and prescription medications can’t nor can alcoholic or food that is high in fat or sugar. Also, there must always be “editorial justification” for a product to be placed and importantly the broadcaster must always retain “editorial control” of the programme content. In other words, the programme can’t be distorted just to feature the product or an advertiser can’t have too much say into the editorial of the programme etc..

Market Value

Whilst there’ve been various estimates, it’s quite difficult to quantify the value of product placement in the UK. However, it’s fair to say that product placement, at least in the UK, is still a relatively nascent market. Soon after the rules were relaxed, it was estimated that the value of product placement deals could be worth up to £150 million a year by 2016. However, some reports suggest that the figures are actually much lower than this. In 2011, product placement in UK TV was estimated to be worth £2m and in 2012 some reports suggested it was worth £5 – £10m.

However, notwithstanding the relative nascency of the market in the UK, the continued pressure on broadcasters to maintain advertising revenue streams (in particular given the proliferation of digital TV channels and online content) coupled with the positive economic turn-around in the last couple of years, we’ve noticed a significant increase in product placement and associated “ad-funded” programming deals in the UK.

Post-production technology

While it’s arguable that, initially, product placement in British TV may not have had the impact that was initially envisaged or hoped, as mentioned above we’ve seen an increase in these types of deals over the past 2-3 years. In addition to this, significant developments in post-production technology have increasingly created new opportunities for content owners to generate revenue through “retrospective” digital product placement. Specifically, we’ve seen an emergence of products being retrospectively digitally placed into films and TV shows. For example, in 2012, PG Tips logos were digitally inserted on contestants’ previously blank mugs in the game show Deal or No Deal following a deal between Channel 4, Unilever UK and television production company Endemol. As far as I’m aware, this use of retrospective digital integration was one of the first to feature in a programme aired by a UK broadcaster.

The opportunities for retrospective product placement are potentially far-reaching for advertisers, particularly as consumers’ attention is increasingly being divided between competing digital content services, and the widespread use of catch-up and on-demand technology and services means that, despite certain broadcasters’ best efforts, viewers may often have the ability to “fast forward” through content and thereby avoid advertising. Now, a drinks brand for example has the option, instead of purchasing a traditional TV ad spot, to enter into a product placement deal whereby the product could be digitally inserted into fridges in re-runs of TV shows which are proven to rate well. Another example could be where an ad for a particular product might appear on a street billboard as a character walks down the street in a TV programme. Retrospective digital placement also allows for the placed products to be tailored for different markets, e.g. the same character may wear one brand of trainers in the UK version of a show and a local brand of trainers in the same scene of the show aired on Brazilian TV.

A growing range of highly creative digital agencies are increasingly competing in this innovative and emerging space. A good example is Mirriad, which launched in 2008 using patented technology to digitally embed brands into TV content. Have a look at their show reel here:

According to Mirriad, it’s on a mission to “revolutionise advertising for the skip generation”, referring to the fact that viewers increasingly “skip” through ads.

Transparency

While retrospective digital product placement creates exciting new opportunities for broadcasters, it also generates some interesting regulatory challenges. In particular, the Broadcasting Code prohibits “surreptitious” advertising in UK programmes and there is a transparency obligation to clearly signal product placement by displaying a special “P” logo (see below) which lets viewers know that the TV channel or the programme maker has been paid to include products in the programme.

weba

According to the transparency rules referred to above, any programme produced under UK jurisdiction that is commissioned to be shown on an Ofcom licensed channel must include the product placement logo where necessary.  However, broadly speaking, broadcasters  do not have to display the P logo on programmes that were originally broadcast outside the UK, for example, a US drama series that is then shown in the UK.

Additionally, when a broadcaster acquires a programme containing product placement (but does not produce or commission it), then, again broadly speaking, there is no signalling requirement. In this case, the broadcaster is not deemed to have directly benefited from any product placement arrangements and therefore references to products that appear in the programme are generally not treated under the UK regime as commercial product placement.

However, if a broadcaster acquires a programme on the condition that product placement within the programme will remain within the programme when it’s transmitted, the broadcaster will need to make it clear that the reference to the product serves as advertising by including the P logo.

Importantly, in the context of the type of retrospective digital product placement referred to above, if a broadcaster acquires a non-UK programme or programme which doesn’t include any product placement, and subsequently edits it to contain product placement, then this would likely trigger the transparency requirements. Even though the programme may be from abroad, the UK broadcaster would still be subject to the signalling rules if it has benefitted from the product placement in any way.

Conclusion

Retrospective digital product placement appears to be on the rise in the UK. Broadcasters and production companies that employ one of these innovative agencies to retrospectively product place must ensure that they remain compliant, particularly to avoid engaging in surreptitious advertising. Adequate disclosures must be made even in the case of broadcasters who have acquired content and were not responsible for the original commission.

There is uncertainty over whether the value of product placement in UK TV programmes will ever reach the levels that have been previously suggested. In the meantime, however, it will be interesting to see how digital companies develop new and creative ways for advertisers to incorporate their products into UK TV shows which were originally aired months, years or even decades ago.

ASA rulings and the Israeli-Palestinian conflict

For one reason or another, the periodic escalations in the Israeli-Palestinian conflict always seem to incite a media frenzy. Sometimes the conflict and its geopolitics stray from editorial into the word of advertising. This summer, coinciding with yet another unfortunate escalation in the conflict in Gaza, there was much controversy when The Times refused to publish an ad written by Elie Wiesel which condemned Hamas’ use of child sacrifice – this is an extract of the ad:

Elie Wiesel ad

The Times apparently cited concern for reader sensitivities as its reasoning for rejecting the ad. The controversy increased when The Guardian decided to accept the same ad, as explained on the Guardian’s site here.

A similar controversy arose soon after, when the Jewish Chronicle newspaper issued a public apology to readers who complained after it ran the below advert for the Disasters Emergency Committee’s Gaza crisis appeal.

DEC ad

These stories made me wonder to what extent the ASA, the regulator of UK advertising, has been required to adjudicate on advertising in the context of the Israeli Palestinian conflict. So in this post I’ve taken a look back through all the published ASA adjudications (I could find) which have related in one form or another to the conflict. If you think I’ve missed any, please let me know!

By my counting there are 9 relevant adjudications in total which span from the first in April 2010 up until a recent one last month. Out of the 9 adjudications, 5 of them involved an investigation into adverts published by the Israeli Government Tourist Office. The complaints against the Israeli Tourist Office have usually related to whether or not certain territory or a certain landmark is or is not part of Israel. The ASA has found for and against the various complainants depending on the facts of the particular complaint and the content of the ads.

For example in this adjudication from April 2010 and this adjudication from March 2012, the ASA upheld complaints that the Israeli Tourist Office ads misleadingly implied that East Jerusalem, the West Bank, the Gaza Strip and the Golan Heights were recognised as part of Israel. Another similar ruling came in November 2011, where the ASA upheld a complaint regarding a press ad by a company called ILAN Real Estate, which was held to misleadingly imply that a property development in Efrat in Dekel was in Israel, whereas in fact it was a settlement in the occupied West Bank.

However, in this adjudication from April 2011 and this one from April 2012, the ASA did not uphold complaints that ads from the Israeli Tourist office misleadingly implied that the Western Wall and the whole of Jerusalem (including the Old City and the Church of the Holy Sepulchre) were part of Israel.

The other adjudication involving the Israeli Tourist Office involved 3 complaints about a magazine ad which stated amongst other things that Israel is a melting pot of races and creeds...” In that ruling the complainants challenged, amongst other things, whether the claim was misleading and likely to cause offence because they believed that Palestinians in Israel were restricted in movement and excluded from some areas of daily life. In the ruling, the ASA did not uphold the claim on the basis that the inhabitants of Israel were made up of a number of different ethnic groups and faiths and, as with all societies around the world, inequalities existed and the claim would be understood by consumers to be a reference to the population mix of the country and not a claim that the population necessarily lived in harmony and equality.

Out of the remaining 3 adjudications, two of them are “tourism” related and are quite similar to the rulings referred to above regarding the Israeli Tourist office but come from the other side of the conflict. In this adjudication from March 2011, the ASA investigated a magazine ad for Travel Palestine which 149 people complained misleadingly implied that (a) Palestine was a recognised country; (b) the whole of the area described as situated “between the Mediterranean Coast and the Jordan River” was Palestinian-administered territory; and (c) Jerusalem was part of Palestinian-administered territory. The ASA did not uphold the first two points, but did uphold the third point regarding Jerusalem on the basis that, amongst other things, the status of Jerusalem was in dispute. Similarly, in this adjudication from December 2011, the ASA upheld various complaints that an online interactive map created by the Palestinian Diplomatic Mission misleadingly implied amongst other things that either the state of Israel did not exist, or that certain Israeli cities such as Haifa were in fact part of Palestine.

The final ruling is the most recent one from 3 September 2014 where, following complaints from UK Lawyers for Israel and Baroness Deech, the ASA investigated three ads for Medical Aid for Palestinians. The ads described various hardships faced by Palestinians under Israeli occupation. In the ruling a whopping 22 separate issues were investigated, which is an unusually large number of separate issues for an ASA adjudication. Out of the 22 issues, one was upheld which related to a claim regarding the number of Palestinians alleged to have had their permit request to get to hospital denied, the other 21 issues were not upheld. Out of all of these rulings, this one is definitely worth reading because of the granularity with which the ASA was required to investigate various facets of the Israeli occupation of the West Bank.

A particularly fascinating aspect to all of these is the way in which the Israeli-Palestinian conflict can challenge the traditional separation between editorial and advertising, whereby the mere decision to run or not run a particular ad can itself be a “political” decision.

New book on Advertising Law!

Some may think the greatest book ever written is War and Peace, others may think it’s the Great Gatsby… However, they’re wrong because the greatest book of all time is clearly “International Advertising Law: A Practical Global Guide” which was published yesterday by Globe Law & Business.

I helped edit the book and write the UK chapter. The book contains chapters drafted by lawyers from over 30 countries (so there was a lot of editing to do). I haven’t written a blog post in a good few months as I’ve been very busy at work, so apologies that this one is really just a shameless plug.

As many readers of this blog will know, advertising law and regulation is found in a wide variety of sources and overlaps with a diverse range of other areas of law. This made the selection of a finite number of topics to cover in the book a difficult task. When we decided which topics to cover, we considered the questions that in-house advertising and marketing lawyers (and non-lawyers) are likely to encounter most frequently in their day-to-day work, but we also kept private practice lawyers in mind.

Each chapter is written by an expert in the relevant country and begins with an overview of the legal and regulatory regime for advertising in that country, before providing more detail on the following seven topics: (i) comparative advertising; (ii) online behavioural advertising; (iii) sales promotions; (iv) ambush marketing; (v) direct marketing; (vi) product placement; and (vii) certain industry-specific regulation (which includes consideration of the regulation of advertisements for gambling, alcohol, pharmaceuticals, financial products and services, food and tobacco).

More detail about the book can be found on the Globe Law site here. It’s also available on Amazon and all good bookshops (provided they sell legal text books).

Enjoy!

Second Screen Ad Campaigns – the new frontier for keyword litigation?

Last week I went to the incredibly cool Future TV Advertising Forum and, amongst other things, I saw a demonstration of some prototype systems for running synchronised second screen ad campaigns.

By the “second screen”, broadly speaking, I’m referring to a tablet which someone uses on his/her lap whilst sitting on the sofa watching TV (there’s an interesting debate about whether it’s the tablet or in fact the TV which is now the second screen, but that’s another story).

One particular product by Cisco and Innovid caught my eye. At a high level, it involves a system which picks out various keywords spoken during a programme played on TV which could then be used to trigger relevant and targeted ads to the user on his/her tablet. The system is so sophisticated it can even determine the “context” in which the word is being used to determine whether it’s a “positive” or “negative” mention of the word. For example, if someone on the TV was slagging off a brand, you wouldn’t want that to trigger an ad for that brand on the second screen, whereas if someone was watching a cookery programme, that would be a good opportunity to trigger ads for cooking utensils etc. There’s more detail about the Cisco / Innovid solution in this blog post here.

What is particularly interesting about the system from a legal perspective is that it provides the potential for brands to purchase their competitors’ trade marks as trigger keywords, which, if appearing in the broadcast audio stream could trigger an ad on the tablet.

Anyone who knows a bit about trade mark law will know that if there’s one area which has caused an absurd amount of litigation in Europe, it’s the purchasing of competitors’ keywords in order to trigger sponsored search ads on search engines (the most well known of course being Google’s Adwords service).

If you’re reading this blog you’ll probably know how keyword advertising works. If not, in summary, if you want to advertise a website on Google, you can choose certain keywords which are “related” to your business – see Google’s guide here for how it works. More than one advertiser can purchase the same keywords, so advertisers can bid for how high up the list of sponsored ads they want their link to appear.

The problem therefore arises where a third party trade mark is purchased as a keyword and the third party feels this leads to an unfair advantage being taken from its trade mark. It’s these issues which lead to cases such as Google v Louis Vuitton, L’Oreal v eBay, and most recently Interflora v Marks & Spencer, where the High Court held in May this year that the use by M&S of the keyword “INTERFLORA” to advertise its flower-delivery business on Google was an infringement of Interflora’s trade mark.

The outcome from Interflora appears to be that a trade mark owner will struggle to prevent others from using its trade mark in keyword advertising unless the use somehow causes detriment to the trade mark’s distinctive character or reputation, or makes it difficult to determine whether the advertised goods/services originate from the trade mark owner or a third party etc.

It will be really interesting to see whether the type of synchronised second screen ad campaigns described above could prove to be the next battleground for keyword litigation, taking it from the web, to the TV, to the tablet.