October 17, 2018

It was only last month that I wrote about the difficulties facing advertisers of age-restricted products using digital. Whilst CAP’s guidance on Children and age-restricted ads online states, amongst other things, that ads for age-restricted products must not appear in media where children or children and young people make up a significant proportion – more than 25% – of the audience, where the media’s audience is mixed, recent ASA adjudications for ads for age-restricted products have taken this further.

We now know that for those advertisers advertising age-restricted products online (such as gambling operators), the general 25% audience composition threshold for social media is removed (due to the ability to target a defined set of users) and we also know from the ASA’s recent decisions against Greentube Alderney Ltd WHG (International) Ltd, that age-based audience targeting alone for digital display advertising, will not be enough to demonstrate advertisers have taken all reasonable steps to verify that the audience is not below 18 years of age where:

• there are other tools available to the advertiser (such as interest and behavioral targeting); or
• the media itself is popular with the under 18s (see also the Captain Morgan Snapchat lens decision).

Today’s upheld (in part) adjudication against Spotify, shows that even where ads are not age-restricted, when assessing an ad’s compliance with the general social responsibility requirement (rule 1.3 of the CAP Code: “marketing communications must be prepared with a sense of responsibility and to society“), if the media used to communicate the ads could be regarded as having particular appeal to children (regardless of the actual viewer demographic), then the bar for the social responsibility test is higher.

In this case, the ad was a Halloween horror movie parody, which the ASA thought was unlikely to cause distress to adults but that it was likely to cause undue distress to children (in breach of rule 4.2 under Harm and Offence). Despite only 11% of the viewers of the YouTube channel which featured the ad, DanTDM, being between the ages of 13 and 17, based on viewer demographics relating to logged-in users, the channel was still deemed to be of particular appeal to children (and so the standard for assessing whether there had been a breach of rule 4.2 was the standard applicable to a child and not an adult).

The rationale was that the channel made use of cartoonish imagery and included videos of video games popular with children and media including Fortnite and The Incredibles. Because videos on the channel were presented in an enthusiastic manner by a youthful presenter who had won an award from a children’s television network, the ASA considered that the channel would have particular appeal to children and therefore the ads had appeared before videos that were likely to be of appeal or interest to children.

For me, the message is clear – demographic data is not the absolute requirement for assessing whether or not media is or is not children’s media or not – so watch out when your ad is either age-restricted or if it could be measured against a different standard if the media (not just the ad) is of particular appeal to children.