Your creative team have just worked on a fantastic new campaign and your digital team can't wait to share the assets on social media. Of course, your teams have been well trained and know that they must use the social media platform's age filtering tools if there is a risk that you could all end up in hot water if the content is viewed by younger consumers (e.g. when advertising HFSS, gambling, or Alcohol products). Accordingly, the team have duly filtered out under-18s from viewing the post so nothing can go wrong, right? Well, as a food delivery company found out this week (along with  previous examples of gambling firms): a few clicks are just not enough.

The CAP Code requires that all marketing communications are “prepared with a sense of responsibility to consumers and to society”. Most platforms allow users aged 13 and above to sign-up for an account and the ASA's own research has highlighted the issue of self-age verification (whereby users simply input their “date of birth” with no requirement for corroborating evidence). Simply put: social media platforms are chock-full of users who claim to be over 18 (or over 16/25 etc.) despite not having completed their GCSEs yet. On this basis, it would not be responsible to simply target over 18s and blithely sit back and assume that younger viewers won't be able to view. If you ran an off-licence, one wouldn't ask customers to simply state their date of birth before allowing them to walk off with a bottle of Frosty Jacks (other horrific high abv ciders are available).

So, what can advertisers do? Do the ASA simply expect them not to advertise age restricted products at all on social media? Thankfully, the ASA do not take such a hard-line. They instead require that marketers make full use of all tools available to them, such as interest-based targeting and using any linked external data, to ensure that their ads are targeted at age-appropriate users (i.e. tools that seek to infer real ages based on actual behaviour and target based on interest). Of course, such targeting will entirely depend on the type of product being advertised (and by which brand) on a case-by-case basis.

In particular, brands should be cautious and carefully consider how they are targeting if any of their content is used in a way that is likely to cause harm, widespread offence or relates to a restricted product:

• Sexualised imagery/wording – content featuring these should be carefully reviewed (see our previous post here). The ASA will always consider the audience and placement in appropriately targeted media, so ensuring that sexualised humour (e.g. innuendo) is viewed favourably by the ASA, care should be taken so that it is not seen by children.
• Fear and distress – Ads seen by children should not contain frightening or disturbing imagery. 
• Safety – Any content should not encourage unsafe activities, entering strange places or show children in hazardous situations or behaving dangerously. 
• Age restricted products – Any content which features alcoholic drinks (along with other age restricted items such as gambling products, cigarettes or HFSS consumables) will prove problematic and should not be seen by anyone under 18. 

The above concerns may mean that many posts must be carefully reviewed to ensure that they are properly age targeted and with further interest targeting applied. This may mean that the content must be placed as an ad and not as a public post if wider controls are available on the relevant platform under that route. It should be noted that, such targeting should always go hand-in-hand with due diligence around the context in which the ad appears. One advertiser, despite age-gating and selecting viewers based on interests, still advertised around programming of strong appeal to children (a programme dedicated to Minecraft) and so was held in breach of the ASA's rules. Of course, the ad's content itself should also not to be of appeal to children and extra care should be taken when using cartoons, animals (particularly cute or cuddly animals), cartoon styling, or other real or CGI characters that could be considered of particular appeal to children. This is a highly subjective area and care should be taken at the design stage to ensure that colour palettes, rendering style, music and tone are all suitably ‘adult’ (see indicative previous ASA rulings here and here)

This post aims to highlighted some of the potential pitfalls of digital advertising and the myriad factors in-house counsel and their marketing and digital teams need to keep in mind. of course, responses to any particular piece of content will always be fact specific, particularly when they involve the possibility of harm or offence. For advice on any of the issues identified in this post, contact Alex Lowe of DLA Piper UK LLP.