European Union: ICC Updates Marketing And Advertising Code To Account For The Digital World

The International Chamber of Commerce (ICC) has revised its code of conduct for advertising and marketing (the ICC code) to keep up with the "rapid evolution of technology and technologically-enhanced marketing communications and techniques".

The revised ICC code considers emerging digital marketing and advertising practices, in order to set a "gold standard for modern rule-making in our digital world".

The ICC code

The ICC code is a framework for self-regulation, which applies across the global advertising and marketing industry.

The basic principle of the ICC code is that all marketing communication should be "legal, honest, decent and truthful". Other key principles include respecting human dignity, being transparent, fair competition, social responsibility, making the marketer's identity apparent, and taking special care where communications are directed at children and teenagers under 18.

What's new?

1. Transparency: enhanced guidance on distinguishing marketing communications content from true editorial and user-generated content.

The ICC is concerned about transparency. The ICC code says that marketing communications should not misrepresent their commercial purpose, for example by being disguised as user-generated content. This ties into the key principle that the marketer's identity should be made known.

2. Scope: expanded coverage of the rules to include emerging digital mediums and participants.

The responsibility to observe the ICC code is extended to "other participants in the marketing eco-system", and the ICC code now covers social media, artificial intelligence-enabled marketing, market influencers, bloggers, vloggers, affiliate networks, data analytics and ad tech companies.

3. Direct and digital marketing consolidation: merged rules on direct marketing and digital marketing communications.

Chapter C and D of the previous edition of the ICC code are combined in the revised Chapter C to address direct marketing and digital marketing communications together. This provides for a more streamlined application of the ICC code to multiple regions and technologies.

4. Mobile devices: updated terminology and guidance on the applicability of mobile phones and cross-devices to location-based advertising and interest-based advertising.

"Mobile" is widely defined and includes "wireless devices (such as, but not limited to, portable game consoles, tablets, wrist watches, etc.) which a user can call from and interact with..."

The ICC code gives guidance for using precise location data and cross-device tracking to carry out interest-based advertising on mobile settings. This guidance also applies to interest-based advertising on desktop, video or TV, social or Internet of Things settings. Among other things, it should be clear to users how their location data is used, and users should not be misled as to the extent of tracking.

5. Advertising to minors: clarified rules on advertising to children and teens.

The ICC code makes clear that marketing communication directed at children should be "appropriate and suitable" for the particular age group. This includes consideration of inexperience and credulity of children when making claims about a product's performance or use.

Comment

As the digital world rapidly develops, it is challenging for guidance, frameworks and codes of conduct to remain up to date. Therefore, it is likely that the revisions to the ICC code will reflect what the advertising and marketing industry has already been doing in the context of the emerging digital market. Nevertheless, the ICC code now provides a thorough and technologically up-to-date framework for responsible advertising and marketing in the digital world.

The ICC code provides a useful explanation on how it compares to law and how the two interact. From a general perspective, codes of conduct set standards of ethical conduct, rather than being legal requirements. The fact that a communication complies with relevant legislation (such as the General Data Protection Legislation (GDPR) or locally implemented versions of the EU ePrivacy Directive) does not necessarily mean that it is also ethically responsible or appropriate. The ICC code therefore adds an extra layer of scrutiny on top of existing legislation to encourage professional diligence by those advertising and marketing.

The subject of ethics is on the rise. This is largely in response to the examples of large-scale personal data mis-handling and privacy violations that we have seen in recent years. Despite the broader reach of the GDPR and the fanfare that it was introduced with, the law is not adequately protecting individuals from the real-world effects of consumerism. It seems that the ICC seeks to provide that extra layer of scrutiny and recourse, and ultimately a more human element of determining what should and shouldn't be done.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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