1.1 What is online advertising?

“Advertising” can be defined as any form of published commercial message intended to promote goods or services for a business interest.

The online environment offers numerous advertising possibilities, including embedding ads into the editorial content. Some common examples are:

• Advergames: free games whose aim is to promote a given brand through their dissemination and use
• Brand integration: using editorial content to discuss/give visibility to a brand (similar to “branded content” and “product placement”)
• Advertisement: banner messages displayed at specific locations on the web page or application. These ads may also appear as pop-up windows, overlays or interstitials as well as between two page views, video views, game sessions or website sections.
• Behavioural advertising : ads selected and displayed based on the navigation data collected from the user.

1.2 What regulations govern advertising?

Consumer protection laws use the concept of “false advertising” to refer to ads likely to deceive the consumer through misleading statements or product misrepresentation. Whether or not an ad is misleading is also determined based on the maturity of its target audience.

Advertising practices are voluntarily regulated through codes set out by the industry (advertisers, advertising agencies, media organizations). Such self-regulation establishes ethical standards for how the messages are designed; it also creates a system for evaluating ads and handling complaints.

In advertising, the notion of responsibility is complex due to the number of stakeholders involved. When a message violates a law or self-regulatory code, who is responsible? The advertiser? The agency? The media platform? The ad network? The answer varies depending on the jurisdiction in question; however, generally speaking, responsibility is shared. All stakeholders must therefore remain abreast of the regulatory framework in effect wherever they advertise.

1.3 Advertising aimed at children

Children may lack the cognitive skills, experience and maturity to detect the commercial intent behind an ad. Because of this, advertising aimed at children is often more strictly regulated.

With the exception of Québec (where the law is more stringent and bans commercial advertising targeting children under 13 years of age, barring certain exceptions prescribed by regulation), all of Canada’s other provinces, along with the United States, the European Union, France and Australia, use self-regulatory codes to regulate advertising aimed at young audiences. In general, these codes advocate that:

• Ads must not exploit children’s inexperience or credulity.
• Ads must not contain visual information or illustrations liable to harm the child emotionally, morally or physically.
• Ads for products whose sale is prohibited to children (e.g. alcohol, lotteries, etc.) should not present these products in a way attractive to children.

CANADA

Two realities coexist in Canada: the province of Québec, where the Consumer Protection Act prohibits commercial advertising aimed at children under 13 years of age, barring certain exceptions prescribed by regulations; and the rest of Canada, where advertising aimed at children is controlled through industry self-regulation.

1. The Competition Act

Federal law that covers false advertising on all media platforms. All companies based in Canada that advertise online are required to comply. In the digital space, the responsibility comes down to the entity that controls the platform’s content. Note that the Act has no special provisions for children.

2. Provincial Consumer Protection laws

Legislation enacted in each province that prohibits false advertising in all media. Québec also bans commercial advertising aimed at children under 13 years of age, barring certain exceptions prescribed by regulation. Consumer Protection laws in the other provinces have no special provisions for children.

3. Personal Information Protection and Electronic Documents Act (PIPEDA)

Federal statute with policies and directives concerning online behaviour advertising.

For more information:

• Competition Bureau: Application of the Competition Act to Representations on the Internet
• Consumer Information: Provincial and Territorial Legislation
• Office of the Privacy Commissioner: Policy Position on Online Behavioural Advertising

***QUÉBEC***

Consumer Protection Act

Provincial law that prohibits commercial advertising to children under 13 years of age on all media platforms, barring certain exceptions prescribed by regulation. The ban applies to messages aimed at children in Québec, including those issued by companies based outside the province. The Act applies to any stakeholder involved in the advertising process, including all persons who request the ad as well as those who design, distribute, publish or broadcast it.

In determining whether a commercial message is intended for children aged under 13, you need to consider the following:

1. a) The nature and intended purpose of the product advertised (is it attractive to children?)
2. b) How the ad is displayed (is the message designed to attract the attention of children?)
3. c) The time and/or place where the ad appears/is broadcast (are children targeted by or exposed to the message? Are they present where or when it is displayed or broadcast?)

The law also provides that it is necessary to take into account the context of the ad’s presentation and the general impression it gives.

The law allows you to post ads on your youth platform provided the messages are not intended for children aged under 13. Analyzing how the factors above interact will let you determine whether an advertisement violates Québec’s law.

Warning! As discussed in Section 1, online advertising can take many forms, all of which are subject to the ban. Your youth platform should not serve as a vehicle for delivering ads to Québec children aged under 13 or for promoting other brands. For example:

• Advergames: games developed around a product “attractive” to children (e.g. a toy, candy) are in violation of the law.
• Contests : when the prize is a product “attractive” to children, be very careful in how you promote the contest.
• Behavioural and contextual advertising : to be avoided insofar as the messages presented are selected based on children’s browsing history or inferred preferences.

The law has three exceptions, prescribed by regulation, to the prohibition of commercial advertising to children under 13 years of age. Accordingly, under certain specific conditions it may be possible to advertise in a children’s magazine; advertise for a children’s entertainment event; and advertise in a way designed to target children in store windows and displays as well as on containers, packaging and labels. Furthermore, educational or lifestyle advertising is permitted under certain conditions.

It should also be noted that under the law, advertisements can still be considered to be directed at children under the age of 13, even when contained in printed matter intended for an older audience (persons aged 13 and over) or a general audience (persons both under and over 13 years of age), and even when broadcast during a program intended for an older audience (persons aged 13 and over) or a general audience (persons both under and over 13 years of age).

For full details, consult the guide for Advertising Directed at Children under 13 Years of Age

UNITED STATES

Federal Trade Commission (FTC) Act

Federal law prohibiting unfair or deceptive advertising in any medium. Under the Act, advertisers are responsible for the content of their ads. Third parties involved in designing or delivering a message (including platform operators) share the task of assessing the message’s content and may be held liable for misleading advertising.

The Act has a special provision for advertising aimed at children which states that advertisers must be careful not to misrepresent a product or its performance to children due to their level of development.

For more information, visit the Federal Trade Commission online

Children’s Online Privacy Protection Act (COPPA)

Federal law applicable to products that collect personal information from U.S. children under 13 years of age. COPPA holds operators responsible for all personal information collected through their platforms, including data gathered by third parties (e.g. ad networks). When a third party collects information about your users, you must specify this in your privacy policy and obtain verifiable parental consent prior to collection.

For more information on COPPA, see Backgrounders Collection of Personal Information and Online Behavioural Advertising as well as the COPPA guide, https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions.

Advertising Self-Regulatory Council

U.S. organization defining the policies and procedures of various self-regulatory industry programs. The Children’s Advertising Review Unit (CARU) assesses advertising and promotional materials across all media to meet its mission of:

• Enforcingits guidelineswith nationaladvertisers, i.e. those conducting advertising campaignsacross thecountry (or a substantial part thereof)
• Monitoringonline platformsto ensurecompliance with the laws (e. COPPA) governing the collection of personal information

The CARU lays out principles applicable to the online environment. For example, advertisers who incorporate advertising into youth production content should make this clear, using language that will be easily understood by the intended audience.

For more information, consult the CARU’s guidelines

EUROPEAN UNION

Directives 2005/29/EC and 2006/114/EC concerning unfair business-to-consumer commercial practices

Directive 2006/114/EC prohibits misleading advertising, while Directive 2005/29/EC covers business-to-consumer commercial practices. The latter prohibits misleading, aggressive and rogue practices such as deceptive marketing and unfair advertising, listing various commercial practices considered unfair. Directive 2005/29/EC also includes a provision on children whereby it is unlawful to include “in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.”

Electronic Commerce Directive 2000/31/EC

This directive covers the liability of operators established in the EU for online services (including those funded by advertising), electronic transactions and other online activities, entertainment services (video on demand), marketing, direct advertising and access to internet services. The directive repeatedly underscores the importance of protecting minors.

For full details on the European legal apparatus, visit the European Parliament website

FRANCE

Code de la consommation (Consumer Code) and Code d’éthique (Code of Ethics) of the Autorité de régulation professionnelle de la publicité

In France, the only tool that covers online advertising directed at children is the Code of Ethics issued by the French advertising regulation authority, the Autorité de régulation professionnelle de la publicité (ARPP). The code contains a number of pertinent recommendations and applies to all ads aired in France, regardless of media. The Consumer Code sets forth provisions prohibiting misleading advertising without being specific to children.

To see the code’s provisions in full, consult the following document, available on the ARPP website (in French only)

For more information on the French government’s position on deceptive marketing practices (in French only): Le portail de l’Économie et des Finances

AUSTRALIA

Australian Consumer Law

Federal law that generally prohibits misleading conduct in the business environment, including advertising. It applies to all companies that do business in Australia. It has no provision for advertising directed at children.

For more information, consult the Australian Consumer Law guidelines

Apple App Store

Apps cannot use push notifications to issue advertising or promotional offers. Apps in the Kids Category may not include behavioural advertising, while any contextual ads presented in the app must be appropriate for kids.

Additional information

Amazon Appstore

Regarding embedded advertising, your use of the user information generated by players’ interactions with embedded ads must comply with Amazon’s privacy requirements. You cannot use push notifications to issue advertising or promotional offers.

Additional information

The section below focuses on the Canadian self-regulatory system, which covers advertising directed at children on digital platforms.

*Self-regulation on digital platforms draws largely on Advertising Standards Canada’s Broadcast Code for Advertising to Children

Canadian Code of Advertising Standards

Administered by Advertising Standards Canada (ASC), the code aims to foster and maintain public confidence in advertising. It applies to all forms of advertising distributed through Canadian media and contains guidelines for advertising to children.

For more information, consult the ASC’s Interpretation Guidelines for Advertising to Children

Digital Advertising Alliance of Canada

Canadian self-regulatory program for online behavioural advertising. For more information, see Backgrounder Online Behavioural Advertising.

Additional information:

Canadian Self-Regulatory Principles for Online Behavioural Advertising

Canadian Marketing Association (CMA) Code of Ethics and Standards of Practice

This code lays out the best practices and key principles for ethical marketing in Canada and applies to all CMA member organizations.

It includes a children’s section that urges members to exercise judgment when addressing young audiences, based on the notion that, since children are not adults, not all marketing techniques are appropriate for them. For example, interest-based, targeted or behavioural advertising should not be knowingly used on websites intended mainly for children.

For more information, consult the Code, http://www.the-cma.org/regulatory/code-of-ethics

• If you’re designing a platform for a television broadcaster, consult the Broadcast Code for Advertising to Children as well as the broadcaster’s internal policies in the matter.

• E-commerce platforms must be incorporated into the parents’ section, behind a parental gate appropriate to the age of your target audience.

• Avoid using third parties who collect information for the purposes of behavioural advertising.

• If you want to use an ad network, choose a supplier who can provide you with tools to limit and monitor the kinds of messages displayed.

1. Be transparent about your targeted advertising practices: when you collect tracking data, notify users in a clear and comprehensible manner — for example, using a banner or interactive tool.
2. Give users a chance to opt out of behavioural advertising without barring their access to your platform. The withdrawal must take effect immediately and remain valid for future connections.