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Showing non child-friendly ads to unregistered YouTube users risks ASA censure, says expert

Advertisers must use YouTube's age-restricting technologies for ads that should not be shown to children if they want to comply with advertising regulations, an expert has said.19 Jan 2012

If they allow an advert to be shown to unregistered users whose ages YouTube does not know they risk censure by the advertising regulator said Matt Dowell, an advertising regulation specialist at Pinsent Masons, the law firm behind Out-Law.com.

The UK's advertising watchdog has ruled against film distributor Lions Gate UK (Lions Gate) over a film trailer that could be seen by unregistered YouTube users as well as registered ones. Registering with YouTube involves giving your age and the site bars users under 13 years old from using the service.

The Advertising Standards Authority (ASA) ruled that Lions Gate had breached the Committee of Advertising Practice Code (CAP Code) rules that require marketing communications to generally be "prepared with a sense of responsibility to consumers and to society" and "contain nothing that is likely to result in their physical, mental or moral harm" if they are targeted at children.

Lions Gate had placed a trailer for the 12A-rated film 'Abduction' on YouTube via the video-sharing site's 'First Watch' advertising scheme. The material shown in the trailer was "unsuitable" for children and had been targeted at them because the trailer appeared during a YouTube clip children were likely to be drawn to watch, ASA ruled.

The trailer appeared during an animated clip called 'The Duck Song'. A parent complained to ASA after her two year-old child saw the trailer when watching the clip.

"The ad reflected the content of an action film. We considered, however, it included some scenes, in particular those of shooting, explosions and punching, that were unsuitable for younger children," ASA said in its ruling.

"We considered the 'The Duck Song' clip during which the ad appeared, was likely to appeal to children and noted the ad was served in such a way that it could be viewed by all YouTube users, even if they had not logged in. Because it included scenes that were unsuitable for younger children and it could be viewed by all YouTube users, we considered the ad was inappropriately targeted. We therefore concluded that it breached the Code," it said.

YouTube allows advertisers to use 'age-gating' controls in which they can elect that adverts only appear to registered users of the site, or to registered users of a certain age. YouTube's terms and conditions require account holders to be at least 13 years of age and state that the site in general is not for children under that age.  Under YouTube's ad policy advertising campaigns on the site cannot target or appear to target children under 13 years of age, whilst material contained within ads "designed to appeal specifically to this age group" is also prohibited.

When Lions Gate elected to promote its film trailer through YouTube's 'First Watch' system it meant the ad could appear to both registered and non-registered users, the ASA ruling said.

Research completed in the US has suggested that 7% of YouTube users are aged between two and 11 and 9% aged between 12 and 17, the ruling said.

YouTube said that Lion Gate's decision to advertise via its 'First Watch' meant the video could appear to non-registered users as well as those registered as at least 13 years of age on its "partner pages". If ads were "flagged as being suitable only for adult users, no ads would appear" on those pages, YouTube had said, according to the ruling. Partner pages are those that belong to certain YouTube users that upload popular content and obtain a share of ad revenues in return.

YouTube's First Watch system works by limiting the number of times individual users of the site are shown the same ad during a single site visit. YouTube describes the service as a "premium in-stream video" service that displays the ads "first" to users when they visit partner pages.

YouTube's own assessors had reviewed the Lions Gate ad before it appeared and deemed it "family safe". This was because the assessors determined "there was no explicit violence, no blood or scenes of death, no shooting victims (only sounds of shots fired) and no adult language or explicit sexual content," ASA's ruling said.

ASA acknowledged that it was "not possible" to prevent under 13s viewing YouTube content and that not everyone would be aware of the company's age policy.

YouTube does allow advertisers a certain element of control over where ads appear on the site depending on how ads are placed.

Advertisers can choose to associate certain YouTube promotions with specific content by buying words under the company's 'AdWords' system or space through the 'DoubleClick' advertising network, ASA said. For YouTube's "homepage" and "brand channel gadget" ads, film, alcohol and gaming advertisers can create customised 'age-gating' settings to ensure ads that they are only viewable by registered users above a certain age.

Because Lions Gate had not used controls to limit the target audience of their ad, it ran the risk of failing to comply with the CAP Code, Matt Dowell, advertising expert at Pinsent Masons, said.

"The ASA decision against Lions Gate was not upheld because of the content of the ad itself, rather it was because of the context in which the ad appeared and the content it appeared immediately next to," Dowell said.

"ASA came down against Lions Gate because their ad was inappropriate for certain audiences, the options were there for Lions Gate to more closely target their ad and they just chose not to use them," he said.

"As with any other form of 'marketing communication', advertisers and businesses posting content on external sites need to be aware of the relevant rules relating to their advertising and statements about their business.  As the internet and its content continues to grow, advertisers need to treat sites like YouTube in the same manner as they do TV – indeed, YouTube’s First Watch advertising system reaches an audience equivalent to a top-10 US TV show".

YouTube’s Homepage Advertiser Guidelines, which relate to ads appearing on the YouTube homepage, encourage advertisers to ask themselves questions such as 'would I be comfortable showing this content to my kids or parents?' and 'would I see this content on prime-time television?'.

"These are all valid questions for an advertiser to bear in mind in any form of online marketing communication," said Dowell. "If the answer is 'no' to these types of questions or the advertiser is in any doubt, I would recommend they consider steps to target more accurately who is likely to see their ad".

"With increased exposure of an ad in any media comes greater risk of the ad being mis-targeted and possibly seen by someone for whom it is inappropriate," he said. "If advertisers think there are any particular sensitivities in relation to their advertising, or content that their advertising may be shown alongside or linked to, this should be expressly dealt with and appropriate safeguards put in place.  Particular care must be taken when dealing with sensitive issues like age-related material and alcohol."

The 'Abduction' film trailer had been assessed for its suitably for advertising on TV by Clearcast, the body responsible for clearing TV ads before they are broadcast. The restriction Clearcast placed on the ad should have alerted Lions Gate to the need to be more careful over the audience it directed the YouTube ad at, Dowell said.

"Clearcast applied an 'ex-kids restriction' to the TV version of the ad, which ASA noted was substantially the same as the online version," he said. "This restriction in not a timing restriction but a scheduling restriction which will keep the ad away from breaks immediately before, during and immediately after children’s programmes, including those programmes which have a high index of children viewers."

"This, and the fact that the Lions Gate film had a 12A cinema rating, should have alerted Lions Gate to the fact that care needed to be taken in relation to what content the ad appeared next to, both online and in other media, particularly in relation to the age of the potential audience," said Dowell. "The ASA would expect a company like Lions Gate, operating in the film industry, to be well aware of these considerations and to take the appropriate proactive steps."

Lions Gate did not respond to a request for a comment. A YouTube spokesperson said information contained about its ad policies were contained on the company's blog and its website.

An ASA spokesman told Out-Law.com that the watchdog had no plans to issue guidance on online video advertising. He said that free, confidential advice is available through the Copy Advice Service in order to help advertisers comply with the CAP Code.

"The responsibility lies with advertisers to take appropriate steps to ensure material is targeted properly. It is about the content of the ad and the targeting as to whether an ad breaches the CAP Code. We do not think that restricts advertisers from promoting films on YouTube but if material is potentially inappropriate advertisers should take steps to address that," he said.

ASA oversees compliance with the CAP Code and the Broadcast Committee of Advertising Practice (BCAP) Code. The Codes set out rules on advertising, including prohibiting ads that are misleading or make unsubstantiated claims.

In March the CAP Code was changed, expanding the number of mediums in which ads would be subject to the Code's rules. Under the revised Cap Code "advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities" are now subject to the CAP Code rules.

Previously the CAP Code had applied to ads in print, on posters and in emails, text messages and in paid-for-space, such as banner and pop-up ads or keyword advertising on search engines.