June 6, 2017

CAP has published further advertising guidance in connection with the placement of ads online aimed at protecting children and young people.  The guidance is intended to support marketers’ placement of age-restricted ads, setting out the process by which marketers should use data to inform their choice of online media to ensure that age-restricted ads are not directed at children or in media where children make up a significant proportion of the audience, including social media.

CAP intends for this guidance to assist in the interpretation of the CAP Code but does not amend the provisions of it.

1. How is media placement for gambling ads dealt with in the CAP Code?

All marketers must ensure that children and young people are appropriately protected from inappropriate advertising; both marketing that includes sensitive content (such as violent or sexual imagery) and that which is marketing unsuitable products (e.g. gambling products).

The media placement restrictions for gambling state that “Marketing communications must not be directed at those aged below 18[1] years….through the selection of media or context in which they appear” (rule 16.3.13, CAP Code).

2. How are ads directed?

CAP has already issued guidance for marketers on the direction of marketing communications for age-restricted products (like gambling) at people outside of the age-restricted category. Targeting, especially prevalent online, can be used to ensure that marketing communications are only seen by audiences outside of the protected group.  This targeting can be done:

• on the basis of audience composition of the media / piece of content around which the marketing communication appears; and/or

• through the use of data, when creating the audience for a marketing communication, to include/exclude individuals on the basis of their age or other relevant criteria.

In order for marketers to work out the likely composition of the audience of their ads, which must be done prior to the placement of it, CAP sets out three steps:

• In relation to method (i), age-restricted marketing communications must not be placed in or around media that are obviously directed at the protected age category.

• Also in relation to method (i), age-restricted marketing communications must not be placed in other media where the protected age category makes up more than 25% of the audience.

• In relation to method (ii), marketers must show that they have taken reasonable steps to reduce the likelihood of those who are or are likely to be in the protected age category being exposed to age-restricted marketing communications.

In using these steps, it is usually easy to identify the media in which placement of the marketing communication is directed at the protected age category (i.e. gambling ads should not be directed at a games website for young children or a mobile app aimed at teens), however, how marketers are to satisfy themselves (and in the event of a complaint, the ASA) that they have taken appropriate steps to assess audience composition becomes more difficult when: (a) the marketing communication is placed in media of general appeal; and (b) using data to construct the target audience (i.e. method (ii)).

3. Media of general appeal

A 25% threshold applies where the likely audience of a particular media cannot be simply assessed (i.e. the relevant age category must be shown to comprise 25% or less of the total audience where the media is “of general appeal“).

4. Using data to construct the target audience

Where marketers can use data (age-related or otherwise) to determine recipients of marketing communications, the ASA is likely to expect marketers to demonstrate they have taken “all reasonable steps” to ensure that age-restricted ads are appropriately placed. Where age data can be used to exclude the protected age categories this should be done.

5. Why the further guidance?

CAP acknowledged that in certain online environments, such as social media, whilst users were required to be of a certain age to hold a profile on that platform, data supports that a large proportion of children 15 and under, most of whom go online, has a social media profile.  Marketers of products such as gambling, need to be able to demonstrate that they have taken all reasonable steps to target such ads at those aged 18 and over, so as to minimise children’s exposure to them (and this includes via social media where we know children and young people are users).

6. What does it say?

The guidance advises marketers to make good use of targeting data to help ensure their age-restricted ads are targeted at adult audiences but also to reduce the chance of their ads being seen by children.  CAP acknowledged that many online platforms, including social media, have data available to them which allowed marketers more sophisticated targeting techniques than just age data (for instance inferred data for users not signed in to an account that might go to determining date of birth) – using this data is a way to further lessen the likelihood of children being exposed to age-inappropriate ads.

• The advice affirms ads should still not be placed in media directed at or of particular appeal to children.

• Age-restricted ads should be placed on social media should be done so with the support of demographic data supplemented with behavioral data (marketers should also be excluding interests and behaviors “strongly associated with people in the restricted age category“).

• More care should be taken when targeting nearer to the restricted age-category – i.e. it’s better to target over 25s than 19-23 year olds, when looking at interest data for an over 18 restricted product such as gambling.

• Where an advertiser wants to target on the basis of something which has broad appeal, e.g. a gambling operator wants to target an audience group interested in football, then this should be combined with something that excludes the protected category of people -CAP suggests football and house-buying.

7. Comment

Looking at ways to protect children and young people is one of the core principles of the CAP Code and issuing guidance is consistent with the ASA’s more proactive approach on educating marketers and reducing the need for formal investigations.

Whilst informing marketers of gambling products (and other products restricted by age) of the approach to audience targeting it should be taking, (i.e. demographic/age data is unlikely to be enough to support an advertising campaign for such products on social media being sufficiently directed outside the protected group), it is perhaps not as conclusive as a marketer might hope – how finely does the audience have to be segmented in order to exclude those who might be in the protected category?  Would a marketer of gambling products, targeting on the basis of interest in football and cars be required to look at high performance cars in order to ensure no-one under, say 30, was targeted?  Also, how sophisticated can the interest data be? Certainly many young people are likely to be interested in high performance cars, despite the fact that they are probably without the financial means or the experience to enable them to drive one.

Whilst it clarifies the issue of direction, a rather glaring omission from the guidance[2] is a more detailed understanding of the ASA’s assessment of when marketing communications are of particular appeal.  How exactly the ASA will look at interest data in support of the marketer’s demonstration that the target audience is “older than the restricted age group or, which would, taken in the round, reasonable be said to exclude the restricted age group from its audience“, is likely to require further guidance or adjudications to clarify the ASA’s position on what is or is not of particular appeal.

[1] This is 16 years for football pools, equal-chance gaming [under a prize gaming permit or at a licensed family entertainment centre], prize gaming [at a non-licensed family entertainment centre or at a travelling fair] or Category D gaming machines).

[2] When taking these two publications together.