Advertising and marketing | UK Regulatory Outlook July 2024

European Commission to assess impact of DMA and DSA on online advertising sector

On 3 July, the European Commission published an invitation to tender for a third party to undertake a study that will provide the Commission with a comprehensive overview and understanding of the most relevant developments, be they technological, regulatory or market-related, in the online advertising sector.

The Commission is looking for a third-party contractor to map the main issues and identify any regulatory gaps to assist it in understanding the impact of the Digital Markets Act (DMA) and Digital Services Act (DSA) on the sector. It is hoped that the study will inform the Commission's work on implementation and enforcement of the DMA and the DSA, as well as a possible evaluation of the DMA's online advertising-related provisions.

There is currently no indication from the Commission as to when the study will begin. Businesses should be aware that the study may foreshadow further regulation in the sector in the longer term.

EHRC updates guidance on discriminatory advert guidance

The Equality and Human Rights Commission (EHRC) has updated its guidance for those placing or publishing advertisements to assist them in ensuring that their ads are lawful and do not discriminate.

An ad will be discriminatory if it restricts jobs, goods, services or facilities to people with a protected characteristic under the Equality Act 2010. These ads will be unlawful except in very limited circumstances.

The guidance advises on what a discriminatory ad is, when it is lawful to restrict a job or service to particular groups, how a complaint can be made and the EHRC's approach to discriminatory ads.

The updated guidance now clarifies the meaning of "occupational requirements", as set out in Schedule 9 of the 2010 Act, which allows an employer to require a job applicant or employee to have a particular protected characteristic if it is necessary for the role.

The updated guidance now includes an example of a lawful occupational requirement under Schedule 9 as being a Sikh community health advocate, as well as an example of objective justification where an occupational requirement applies as being a changing room attendant of the same sex as those using the facilities. 

The updated guidance also now explains that where an occupational requirement relates to the person being required to be a woman, an area in relation to which there is evidence of some employers incorrectly applying the exceptions, the law provides that this means a person's legal sex as recorded on their birth certificate or Gender Recognition Certificate (GRC) and cannot include transgender women who have not obtained a gender recognition certificate. This is because, under the 2010 Act, transgender women without a GRC do not have legal status as women. However, Schedule 9 also permits an occupational requirement to exclude transgender people if it is objectively justified, which can include those who have obtained a GRC.

IAB UK says government must take collaborative approach to digital advertising regulation and work with industry

In a post on the IAB UK's (the industry body for digital advertising) website, Christie Dennehy-Neil, IAB UK's Head of Policy and Regulatory Affairs, said that a Labour government "must work" with the digital advertising industry to address challenges within the online ecosystem.

While recognising that the Conservative government's Online Advertising Programme identified two important areas of focus – protecting children and addressing illegal advertising – she writes that further work is needed to properly define the issues, assess the evidence and build on it to create lasting solutions. In her view, the new government should take time to "understand, define and prioritise the challenges it wants to address and arrive at evidence-based conclusions". She states that the industry needs policies that both manage the risk of consumer harm and support the UK's digital advertising industry and the wider digital economy to thrive.

There was no mention of any legislation relating to online advertising in the King's Speech on 17 July 2024, or in the Labour party's pre-election manifesto. It is therefore unclear what the new government's intentions are in this area.

The King did, however, say that the government will legislate to restrict the advertising of junk food to children along with the sale of high caffeine energy drinks, but there is no bill to provide for this in the briefing notes. However, a new Tobacco and Vapes bill was included among the 40 bills cited, providing for a ban on vapes and other nicotine products from being branded and advertised to appeal to children.

CMA publishes response to consultation on marketing green heating and insulation products

See Consumer law section.