September 7, 2017

Positive brand association is crucial for any company. When a customer thinks of a brand, the images that come to mind should enhance the desirability and prestige of that company – businesses spend millions on advertising to ensure this is the case.

As a result, it is understandably frustrating when your advert appears next to unsavoury, or even illegal, content. We see an increasing number of these incidents online as technology continues to take control of ad placement. Notably, it has recently been reported that over 250 organisations have announced that they will not advertise on YouTube and Google until they can be certain their ads will not feature alongside extremist content.

The issue stems from the use of programmatic advertising – an automated process that employs algorithms to enable ad space to be bought across many different sites instantaneously. This makes the buying and placement of advertising more efficient but also results in a loss of control. While it is often possible to specify “block words” to help guide the software away from unsuitable websites, this is trickier in the context of video content.

Legal implications

Brand reputation is not the only consideration. Questions are being raised as to whether companies whose ads end up on illegal websites are effectively funding the illicit activities of the operators.

Research undertaken by INCOPRO into the placement of ads on illegal pirate websites shows that legitimate advertisements are still being placed on these sites. Legitimate ads are more prevalent on the less popular piracy sites because targeted advertising is less common on the more popular sites. Unfortunately for advertisers, the less popular sites constitute the majority of pirate sites on the web, which means that legitimate ads are likely to be placed across a vast number of sites whose combined usage accounts for a considerable proportion of piracy.

Protect your brand

Ultimately, pulling ads from Google/YouTube is not a long-term solution and in a landscape where the law is catching up with technology, brands must protect themselves from the outset. Arrangements with ad agencies should be underpinned by watertight terms and conditions, including (where possible) specific restrictions on ads appearing on certain types of websites. For example, it may be possible to include a term that ads must not be served on pirate sites or on specific sites identified in a blacklist.

A good place to start in preparing a blacklist is the Infringing Website List, which has been set up by the City of London Police and catalogues sites that are confirmed to infringe copyright. In the event that an ad does end up on a blacklisted or specifically restricted website, a contractual claim against the ad agency may then be possible.