AI-driven enforcement comes of age in UK with AI systems reshaping advertising and regulation and enforcement – ASA’s 2023 Annual Report

The UK’s Advertising Standards Authority (ASA) has published its 2023 annual report, describing 2023 as a watershed year for its digital strategy.

Together, the ASA and the Committee of Advertising Practice (CAP) secured the amendment or withdrawal of 27,378 ads in 2023, a remarkable 92% of which resulting from proactive work largely powered by the ASA’s Active Ad Monitoring System. In December 2022, the ASA ran 20,000 ads through the system, which rose to over 600,000 ads per month by the end of 2023. This system forms a key part of the ASA’s 2024 to 2028 strategy on AI-assisted collective ad regulation along with operational transformation and the Intermediary and Platform Principles pilot.

Other key focus areas for the ASA in 2023 included important societal issues such as climate change, youth vaping and body image, which will continue to be priorities in the ASA’s ad regulation going forward.

In addition to the ASA’s work, CAP reportedly delivered advice and training to businesses a record 1,369,887 times in 2023, through eLearning modules, industry events, tailored website advice and a proactive Copy Advice team.

Active Ad Monitoring System

In 2023, the ASA introduced its Active Ad Monitoring System, which its Data Science team had developed to proactively monitor online advertising. The system identifies and analyses potentially non-compliant ads using machine learning models.

The ASA reported that the number of ads processed by the system increased 30-fold in 2023, totalling over three million throughout the year. Having contributed to 23 published formal investigations, the system has already become integral to the functioning of the ASA and supporting the work of its expert teams. The ASA intends to continue to develop and refine the system in 2024.

Climate change and the environment

The ASA has firmly aligned its focus on climate change and the environment with the UK's goal of achieving a net zero economy by 2050. To this end, it is collaborating with regulators and government agencies such as the CMA and DEFRA in order to address shared concerns like green finance and food labelling.

The ASA’s report describes the tackling of misleading claims in the energy and transport sectors, using the Active Ad Monitoring system to identify potential issues and publishing extensive research and guidance on recycling, biodegradable claims and ads for meat and plant-based substitutes. The report identified four areas that consumers need to be informed about when it comes to waste:

• Product composition and compostable components;
• The correct location for disposing specific products, whether at home or special collection zones;
• The length of time taken for a product to be broken down;
• The outcome of disposal, including the production of microplastics.

Recognising the challenges businesses face in making accurate environmental claims, the ASA also offered guidance, engagement, and support through CAP's Copy Advice service, which it describes as a commitment to supporting businesses that will continue into 2024.

Body image

The ASA has traditionally addressed ads perpetuating negative body images and exploiting insecurities. In 2023, however, the ASA expanded its focus to include digitally altered images and cosmetic surgery abroad. Roundtable discussions with young people and industry experts provided insights for the ASA’s Body Image project. Having found that cosmetic-clinic ads risk exploiting body image insecurities (see a recent ruling here on a “Mommy Makeover” ad) and trivialising surgery, the ASA says it undertook collaborations with regulatory bodies and issued an Enforcement Notice to hundreds of clinics.

Youth vaping

According to the Advertising Codes, e-cigarettes with nicotine cannot be advertised in certain media unless licensed as medicines, and ads must not appeal to people under 18. As the ASA stresses in its report, advertising should not be influencing vaping in children under 18 years of age.

As a key focus area, the ASA’s report spotlighted its rulings on vaping ads in prohibited media and actions such as issuing an Enforcement Notice to over 150 vaping brands using video-sharing sites, which reportedly resulted in reduced content. The ASA also increased proactive monitoring and engaged stakeholders and now plans to issue a new Enforcement Notice targeting major players across social media platforms in 2024, as well as improving advice and training to ensure responsible advertising of vaping products.

IPP Pilot success

The year 2023 marked the successful conclusion of the Intermediary and Platform Principles (IPP) pilot, involving ten major participating platforms including Amazon Ads, Google, Meta, and TikTok. The IPP pilot’s goal was to drum up industry support for online ad regulation by collaborating with industry players to enforce UK advertising rules and remove non-compliant ads. The ASA outlined the results of the pilot in its report, which showed that participants were highly engaged, collaborating with the ASA on investigations, implementing terms and conditions and other policies and systems to assist advertiser compliance, and generally raising awareness of the codes of their platforms.

The ASA is confident that the IPP now provides a proven method to platforms to ensure responsible online advertising. In 2024, the ASA will advocate for the IPP's further development in line with UK government support. The project holds promise for enhancing transparency and accountability in the advertising industry, reflecting ASA's commitment to evolving regulatory frameworks.

Commentary

It is fascinating to see how AI has expanded the ASA’s capabilities, as stated in the annual report. The ASA was able to scrutinise three million ads in 2023, vastly exceeding the 39,034 specific complaints it received in relation to 25,041 ads. This AI-powered review meant that just 8% of the ASA’s actions were reactive, with the rest being proactively flagged by the ASA. We are seeing the dawn of a highly comprehensive ad-review system, which is better adapted to the current digital advertising landscape, and capable of scouring social media and search engines to leave far fewer stones unturned.

The ASA’s efforts regarding ‘green’ claims, such as offering businesses extra guidance with its Copy Advice service, reveal the fine balancing act that must be taken to stem greenwashing, while also avoiding ‘greenhushing’ (i.e. the over-rigorous regulation of sustainability claims, which can compel companies to avoid such advertising entirely for fear of breaking the rules). There is potential to have an adverse impact with overly stringent regulation, which risks punishing rather than rewarding businesses for making sustainable choices. There is also the consequent danger that if businesses avoid advertising on the subject, consumers could have fewer opportunities to be informed about different sustainable products. Regarding the review of ‘green’ claims, nitpicking over technicalities can be counterproductive, creating added bureaucracy or negative publicity for businesses, which are taking genuine steps to do their part for the environment. At the same time, setting high standards and upholding accountability is crucial for maintaining the credibility of legitimate sustainability claims and, ultimately, ensuring that sustainable actions behind the ads are substantive. In the years to come, it will be important for the ASA to balance these demands.

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Article co-authored by Alexandra Stuart, Trainee Solicitor