Category Archives: Digital Media

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.

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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.

2014 Sporting events, social media and UGC

The three big ones this year are of course the Winter Olympics in Sochi (about to come to an end), the Commonwealth Games in Glasgow (23 July – 3 August) and of course the World Cup in Brazil (12 June – 13 July).

I went with some colleagues recently to give a training session to a news organisation about the various news and reporting restrictions and regulations associated with covering these sporting events – in particular the guidelines for “accredited persons” and the news access rules for the accredited media etc.

However, one interesting issue that came up was UGC – i.e. what happens when it’s consumers who are doing the “reporting” as opposed to the accredited media or other accredited persons (such as athletes or coaches etc). As part of my investigation into that point, I came across the ticket purchase T&Cs for each event.

 The ticket purchase T&Cs for Sochi are located here (“Terms and Conditions” link at the bottom). Rule 17.2 of the T&Cs states the following:

…Images, videos and sound recordings of the Games taken by a spectator cannot be used for any purpose other than for private, personal, archival, non-commercial purposes i.e the Spectator may not license, broadcast or publish video and/or sound recordings, including on social networking websites and the internet more generally, and may not exploit images, video and/or sound recordings for commercial purposes under any circumstances, whether on the internet or otherwise, or make them available to third parties.

Fair enough and not particularly surprising, members of the public aren’t allowed to sell photos, video or audio of the Games, and they’re not allowed to upload video or audio of the Games onto social media at all (although it would seem photos are fine).

The ticket purchase T&Cs for Glasgow are located here. They contain a similar restriction to Sochi, Rule 18.1 states the following:

Images, videos and audio recordings taken or made by you in Games venues… may not be used for any purpose other than for personal and non-commercial purposes. You may not sell, license, broadcast (including on social media sites), publish, or commercially exploit in any manner such images, videos or audio recordings, unless expressly authorised by us.

However, have a look at the equivalent rule in the FIFA ticket purchase T&Cs here. Rule 5.2 states the following (my emphasis added):

Ticket Holders may not record or transmit any sound, moving or still image or description of the Match (or any result, data or statistic of the Match) other than for private use. It is strictly forbidden to disseminate any sound, moving or still image, description, data, result or statistic of the Match, in whole or in part, for any sort of public access, irrespective of the transmission form, whether over the internet, radio, television, mobile phone, data accessory or any other current and/or future media (now known or hereinafter invented and/or devised)…

In addition to photos, video and audio, the restriction extends to any “description, data, result or statistic of the Match”… “for any sort of public access…” As far as I can see, this means that if a consumer posts a comment on Facebook or a Tweet saying: “We scored!”, he/she’ll be in breach of the ticket terms and conditions and, strictly speaking, under clause 3.3 of the T&Cs, FIFA have the right to eject him/her from the stadium!

Bonkers.

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.

Advergames – Play with caution (Part 2)

In my previous post on advergames I covered some issues that arise when using advergames as the mechanic for a prize promotion, as well as the importance of making sure the advergame is obviously identifiable as an ad. In this post, I cover some of the issues that arise with advergames that appeal to children.

The reason for devoting a whole post to advergames that appeal to children is because most of the complaints to the ASA about advergames have generally been on this topic. There have also been various reports and campaigns in this area (e.g. the Family & Parenting Institute  and the Kaiser Family Foundation). In many cases it’s these types of campaign groups who are the ones complaining to the ASA about the advergames.

Keep it real

Section 5 of the CAP Code contains the general rules regarding advertising to children (note that for the purposes of the CAP Code children are under 16).

An important rule is rule 5.2 which requires that ads targeted at children mustn’t exploit their credulity, loyalty, vulnerability or lack of experience. As part of this rule, children mustn’t be made to feel inferior, unpopular, or cowardly etc for not buying the product.

In the previous post, I referred to the recent adjudication regarding a series of online Weetabix advergames. The games included “Weetos Leap of Faith” (in which players tried to make a Weeto leap into a bowl of milk) and “WeetaKid” (in which the aim was to control a character in collecting as many Weetabix as possible against the clock). In that adjudication, the ASA looked at various rules under the CAP Code and held that, amongst other things, the rules regarding the exploitation of children’s vulnerabilities had been breached. This was due in particular to the fact that some of the games (on a smartphone app which had been created as part of the campaign) featured various on-screen prompts which encouraged the character (“Weetakid”) to eat. The prompts included the following:

“I really think you should eat something. How about it?”

“What?! No Weetabix?! Why make things harder for yourself?”

“Tired is not a good look for you. Why not eat something?”

Despite Weetabix’s argument that children who played computer games disassociated what happened in the game from the real world, the ASA thought that the prompts blurred the lines between the “fantastical WeetaKid world and the real world”. The issue was that it hadn’t been made clear enough to children that the prompts were directed at the WeetaKid character rather than at the child playing the game. The ASA was also concerned that the language and tone of many of the prompts was persuasive and negative and could lead children to understand that if they didn’t eat Weetabix they were failing in some way.

For grown-up eyes only

When it comes to alcohol, advertisers have to tread very carefully. Section 18 of the CAP Code contains the social responsibility rules (i.e. that ads shouldn’t imply, condone or encourage immoderate, irresponsible or anti-social drinking).

In particular, rule 18.15 contains a specific requirement that ads for alcohol mustn’t be directed at under 18’s through the selection of media or the context in which they appear. In determining whether any media are directed at children, the CAP Code contains the following specific test:

“No medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age.”

In the previous post, I referred to an adjudication from 2008 where the ASA held that Coors had not made an unbranded screenshot sufficiently identifiable as being an ad for its online Carling football game. In that adjudication the ASA also held that Coors had breached the CAP code by targeting an alcohol ad at under 18s through the selection of certain media.

The issue in the Carling adjudication was that Coors were unable to provide satisfactory evidence to the ASA that the Mousebreaker site (which hosted the screenshot) had an audience of fewer than 25% under 18s.

It’s interesting to note that Coors had inserted an age verification page which asked for the date of birth of the visitor before the game could actually be played on the Carling website. However, despite the age-gating mechanism, the ASA still thought there was a breach due to the appearance on the Mousebreaker site of the screenshot which advertised the game.

Keep the kids healthy

Aside from booze, by far the most common area of complaint about advergames has been in relation to food (sweets and breakfast cereals in particular).

Section 15 of the CAP Code contains the rules regarding food advertising and includes specific rules about food and soft drinks marketing to children. These rules sit in the broader context of public health policy which increasingly emphasises good dietary behaviour and an active lifestyle etc.

An important rule in section 15 regarding children is rule 15.11. This rule requires that ads mustn’t condone or encourage poor nutritional habits or an unhealthy lifestyle in children.

In the Weetabix adjudication referred to above, the complainants (Professor Agnes Nairn and the Family and Parenting Institute) had argued that by featuring Weetos cereal and the Weetos logo, the advergames were generally advertising the Weetos brand and therefore, by association, were also advertising Weetos Bars, which are classified as a product high in fat, salt or sugar (HFSS).

However, the ASA thought this was a tenuous argument and didn’t think this breached rule 15.11. This was because, firstly, Weetos Bars were not actually shown in any of the games themselves, and secondly, the rule in the CAP Code is that advergames must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children, not that HFSS products cannot be advertised to children at all (note that the rules in broadcast, as opposed to non-broadcast media are more stringent). Provided advertising an HFSS product is done responsibly and makes it clear that the product is a treat, the ad can be compliant.

Almost exactly a year before the Weetabix adjudication, the ASA had come to a similar conclusion in an adjudication regarding an advergame for the Kellogs Krave cereal. In this adjudication a campaign group (Sustain: The Alliance For Better Food & Farming) complained that the advergame (which was hosted on Facebook) encouraged poor nutritional habits and an unhealthy lifestyle in children because it featured a Krave cereal piece dressed as a super hero chasing and jumping on pieces of chocolate. In this case, the ASA thought there was no breach because Kellog’s had taken sufficient steps to prevent children from accessing the game. Users were required to log-in to Facebook in order to play – at the point of log-in, the user’s profile was checked to ensure they were over 16 before they could click through to play the game.

A few months after the Kellogs adjudication in August last year, there were four further adjudications regarding advergames which all involved Rule 15.11 (amongst others). These adjudications were each initiated following one complaint to the ASA by Sustain as part of its Children’s Food Campaign.

The first of these adjudications was against Dunhills (the maker of Haribo sweets). The complaint related to a game on the Haribo site where a cartoon bear collected Super Mix sweets. In this case there was no breach of rule 15.11 because the consumption of the sweets was presented in a sufficiently abstract manner. The ASA therefore thought it unlikely that children playing the game would be encouraged to replicate the game character’s consumption.

The next adjudication related to a Sugar Puffs game on the Honey Monster website. Again, no breach of rule 15.11 was found. The game featured the Honey Monster trying to eat as many Sugar Puffs as possible. However, the ASA thought that, just as for the Haribo game, the consumption of Sugar Puffs had been represented in an abstract way (with the Honey Monster running through a maze, trying to avoid wasps) and that players were unlikely to associate the Honey Monster’s consumption of the product with their own.

Sustain were yet again unsuccessful in the next adjudication which related to an online Chewits game provided by Leaf Confectionery. The object of the game was to move “Chewie the dinosaur” around the landscape and to find and eat nine different flavoured Chewits. Sustain complained that the game actively encouraged and rewarded images of excessive consumption of the product. However, the ASA thought that the Chewits game didn’t encourage poor nutritional habits in children because it was set in a fictitious setting with a cartoon dinosaur chewing on British landmarks in order to release Chewits – therefore the consumption of Chewits was represented in an abstract way. The ASA also noted that only one sweet of each flavour was shown being consumed by the character in the game and that the total number of Chewits that could be collected in the game was less than the number of Chewits found in a standard pack.

It’s also worth noting that Leaf Confectionery had made available information on the website about how to enjoy Chewits responsibly along with a link to the “Be treatwise” website – the ASA took this into consideration when deciding that there was no breach.

Even though the ASA didn’t uphold Sustain’s complaints about the Krave, Haribo, Sugar Puffs or Chewitts advergames, Sustain did finally have some success in the last of its advergame complaints from August last year, this time against Swizzels Matlow (who make Refreshers and Love Hearts).

The Swizzels website featured an area called “Swizzels Town” containing games, photographs and videos. In particular, there were two games, the first of which involved catching falling sweets into a sweet bag, and the second which involved collecting cola bottles in a maze. Sustain complained the site would make the children interacting with it eat the promoted sweets more frequently.

Regarding the first game (which involved catching falling sweets into a sweet bag), the ASA considered that it wasn’t very long so the total number of sweets accumulated was not particularly high or likely to encourage poor nutritional habits in children.

However, a different conclusion was reached about the second game (which involved collecting cola bottles in a maze). The was some on-screen copy with the game which stated the following:

“Cheeky children visiting the factory have scattered Cola Bottles all around the corridors – you must rush round and collect them all while avoiding the angry parents… Good Luck!”

The game enabled the player to collect almost 100 cola bottles. If players were caught by the “angry parents” in the game, they would lose a life. The ASA thought that the game was quite long (it had three levels) and condoned eating a large number of sweets whilst hiding the fact from parents. All these factors taken together meant that the ASA concluded that the game did irresponsibly encourage poor nutritional habits and an unhealthy lifestyle in children, and was therefore in breach.

It takes one

All of these adjudications are a harsh reminder that it only takes one complaint to start an ASA investigation. Also, the fact that there may have been only one complaint is no guarantee that the ASA will look favourably on the ad. It’s worth noting that in the Weetabix adjudication, Weetabix argued that the game had been available since September 2011 (the adjudication was published in February 2013) and, other than the single complaint from Professor Agnes Nairn and the Family and Parenting Institute which prompted the investigation, there had been no complaints from parents that the games had caused children distress. However, this didn’t prevent the ASA from deciding that there was a breach.