p>You are surfing the web, switching between your Facebook feed, and also reading an article about the growing rate of obesity amongst adolescents due to the consumption of fast food. Suddenly, you spot an advertisement for Burger King beside this article and wonder about the irony of the whole situation.

Marketing is not just about creative advertisements – it also involves substantial investment of time and resources, to create an identity for the brand and to establish a strong connect with its consumers. In case of online advertisements, this connect is built, not just by the message of the advertisement, but is also dependent on the environmental context of the ads (i.e. the type and message of the content surrounding these ads). In this article, I will be discussing the concept of "brand safety" and the role of intermediary platforms in promoting brand safety.

What is brand safety?

The Interactive Advertising Bureau ("IAB") defines 'brand safety' as "keeping a brand's reputation safe when it advertises online". The objective of brand safety is to ensure that the placement of advertisements is such that they are protected against surrounding content that is universally considered to be unsavory. It is intended to prevent potential negative associations with the brand due to particular types of 'harmful' content in the vicinity of the ad. For instance, an advertisement for a product such as Bournvita (promoted as a children or family based product), affixed on or displayed in the midst of pornographic content, would work to the disadvantage of the image of the brand. Substantial time and investment is made by brands on projecting a particular type of image, and when their ads are placed in the wrong context, it can damage their image in no time. It takes the consumer mere seconds to make up his/her mind about the brand just by the content it is being associated with, rendering the brand guilty by association. Hence, years of cultivating the "right" image can vanish in the blink of an eye.

Research findings have demonstrated that people respond to the entire context of an ad impression, instead of just the content of the ad. Ads appearing near high-quality content are found to be more likable than the same ads in low-quality surroundings. As per results of the Integral Ad Science's (IAS) biometric research, ads viewed in high-quality web environments were perceived 74% more favorably than the same ads seen in low-quality surroundings.

What is universally considered "inappropriate"?

According to the IAB, the following categories of content termed as the 'Dirty Dozen' are considered to be universally inappropriate – military conflict, obscenity, illegal drugs, tobacco, adult, arms, crime, death or injury, online piracy, hate speech, terrorism and spam or harmful sites.

Publisher's liability towards brands

The practice in online advertising is that advertisers or agencies purchase 'ads' from publishers such as Facebook or YouTube ("Publishers"), to reach their target audience. Basically, when advertisers purchase ads from Publishers, they seek to target users of a particular demographic or having certain interests. Target audiences are delineated based on personal information surrendered by users to the Publishers (in the course of accessing the Publisher's site), which is stored in cookies (read this post to learn how cookies work) and on the basis of the users' clicking behavior. Utilizing this information to make advertisements more targeted to users' interests is called 'behavioral targeting'.

Advertisers are basically seeking to gain access to the Publisher's audience and not to actually purchase a particular spot on the Publisher's site, which is why they have no control over the surrounding content. In the example of the Bournvita advertisement mentioned above, it is quite likely that though the advertiser may not be happy with the content surrounding the ad, the ads may nevertheless, have reached the brand's intended target audience. In such situations, however, there is a strong potential for harm to the brand's reputation (due to the perception of ads along with their context as demonstrated above) and there is a need to have regulations in place to prevent such harm. Given that the Publisher decides the placement of advertisement (and not the advertiser), it is the Publisher that has to be subject to regulations regarding this aspect, and to avoid situations from arising where brand image is tarnished/adversely affected due to ad environment.  

The 2017 YouTube Debacle

In 2017, YouTube faced a lot of flak from the British daily newspaper 'The Guardian' when it was found that ads for the brand were being placed alongside a range of extremist material on YouTube. The content ranged from videos of American white nationalists, to those of a controversial Islamist preacher. The brand fell prey to Google's automated process of affixing ads to content (called programmatic trading).

In its Ad Policies, Google imposes certain restrictions upon advertisers with respect to the content they are allowed to display in their ads. Prohibited content includes the sale or promotion of counterfeit goods, promotion of dangerous products and so on. Prohibited practices include misrepresentation by the advertiser. However, when it comes to the Publisher's accountability with respect to the services being provided by it to the brands/advertisers, not much is done as it has limited control over the automated processes employed by it in providing these ad services.

It has been recently revealed by Google, that YouTube's advertising revenue for the year 2019 was $ 15 Billion. Further, Emarketer's Report estimated that Google and Facebook received the highest amount of digital ad spends, in terms of annual revenue, with the former generating $ 103.73 Billion and the latter generating $ 67.37 Billion. This is demonstrative of the dominant position held by Google and Facebook in online advertising, making it essential that standards of service are established, whether these standards are self-imposed (such as, through a self regulatory organization), imposed by a third party, or by a regulatory authority even.

Self-Regulation by Google

In the aftermath of the 2017 debacle, Google had introduced certain policy measures for the protection of brand safety on YouTube.

·        In 2018, it increased the thresholds to be met by YouTube channels to be eligible for monetization by ads. The new thresholds are a minimum of 4,000 hours of watch time of videos in the preceding 12 months and at least 1,000 subscribers. This was aimed at reducing the amount of 'inappropriate content', indirectly preventing incorrect brand placement.

·        Subsequently, inventory types were introduced by Google and the advertiser could opt out of groups of sensitive content that did not align with the brand or message of the ad campaign. Expanded inventory setting allowed ads to be displayed on all content that passed the monetization threshold laid down by Google, ensuring maximum visibility of the brand. The "standard inventory setting" was the default setting for accounts and allowed ads to be displayed on most type of content generally found to be acceptable to brands, irrespective of their message and uniqueness. Under the "limited inventory setting", ads would be displayed only on a reduced range of content deemed to be appropriate and strict guidelines would be followed. The videos accessible in this inventory type would meet heightened requirements, especially for inappropriate language and sexual suggestiveness, thereby greatly limiting the ad campaign's visibility. Lists specifying the categories of content that would qualify for specific settings have also been provided by Google.

·        It also introduced the 'Video Ad Safety Promise' promising that certain type of content would not be monetized by YouTube and whichever inventory setting was opted for, ads would automatically be excluded from videos containing profane language in the title, full nudity, animal mating, sexual abuse, drug abuse and sale, and content discussing terrorism or sensitive current events.

Self-regulation by Facebook

Following in the footsteps of Google, Facebook also introduced brand safety measures in November 2019, to protect its advertisers' interests.

·        Advertisers could create block lists and set inventory filters at their account's level for their campaigns as a whole, depending on their brand's vision and requirements (as opposed to having to apply settings one campaign or ad at a time).

It tied up with a video advertising company 'Zefr' (brand safety partner) to gain assistance in developing more brand safety tools.

At the organizational level, Publishers and ad platforms have tried to make strides in addressing advertisers' concerns. However, given the vast amount of content being uploaded on a daily basis on these websites, sifting through such content and ensuring that no offensive content is monetized is no easy task.

Other Global Regulations

By voluntary international organizations

At the national level, the IAB has on its own or in cooperation with other organizations introduced certification schemes to ensure the imposition of brand safety standards. In France, the IAB has in association with other organizations launched the Digital Ad Trust in 2016, with the objective to guarantee brand safety, among others.

Gold Standard certification schemes

The Gold Standard is an initiative by the IAB, requiring IAB members to commit to best practices on brand safety, ad fraud and transparency issues if they seek the 'Gold Standard certification'. This Gold Standard scheme has been introduced in the United Kingdom and Sweden till now.

The former was announced in 2017 to increase brand safety by reducing the risk of ad misplacement, among other things. For this purpose, the UK Good Practice Principles for the Trading of Digital Display and/or Audio Advertising were introduced in 2019. Among other things, these principles mandate the appointment of a 'Responsible Officer' by the member who has to ensure that brand safety measures are implemented by the entity. They also require that the entity formulate a policy laying down brand safety measures to minimize incorrect ad placements. As per reports, Facebook, Google, YouTube, Instagram, Spotify etc. are already certified under this scheme.

Working on the lines of the UK variant, the Gold Standard scheme was introduced by the IAB in 2017 in Sweden, which also aims at ensuring brand safety and reducing the risk of ad fraud, to improve the digital advertising experience. This scheme imposes similar obligations upon its members seeking certification.  

By National Authorities

The Federal Trade Commission ("FTC") in the United States has laid down regulations for Internet marketing and advertising at the level of consumer protection, though it has not yet looked into the protection of brands. On the other hand, in 2018, the European Commission presented a voluntary 'Code of Practice on Disinformation' to prevent the spread of disinformation online by fighting fake news, a relevant aspect of which was also the scrutiny of ad placement to ensure brand safety. Some of the signatories to this code are Facebook, Google, Twitter, Mozilla, Microsoft and several trade associations representing advertisers including the IAB. The signatories to the code have committed to implement brand safety and verification tools, among other things, and are required to publish progress reports with respect to their compliance to their commitments. In this regard, the signatories have published their annual progress reports detailing the measures taken by them to comply with their commitments. For instance, as per Google's report, the Google Ads Inappropriate Content Policy that applies to all Google Ads, identifies categories of ad content and destination content (the 'environmental context') that it prohibits – dangerous or derogatory content, shocking content, sensitive events and animal cruelty.

Independent verification of content by third-parties

In 2017, Google has availed of the services of an independent analytics firm called comScore to continuously monitors patterns within text content to identify the brand safety of a given ad context. In 2019, Facebook certified an independent analytics firm DoubleVerify for Facebook's brand safety capabilities. Essentially, advertisers who avail the services of DoubleVerify will be able to receive these services while publishing their ads on Facebook's platform also. These services include detailed categories of surrounding content to avoid (for ads) and targeting the ads away from undesirable apps.

Author's Views

In the wake of multiple instances of inappropriate ad placement making headlines, brand safety has gained more momentum and has become an important talking point in the marketing industry. The industry has moved beyond just focusing on consumer interests, whether it is in terms of protecting consumers against offensive ad content, or it is protecting their privacy from being violated in the name of providing relevant ads. Even though online advertising revenues are falling on account of overcrowding (of ads) in the marketplace, brand safety concerns are at an all time high. On balance, the benefits that can accrue to a brand from an ad campaign are outweighed by the potential harm that may arise from being associated with unsavory content due to inappropriate ad placement, which may be outside their control in certain cases. In such a climate, though private service providers are trying to plug the gap by helping platforms with their content verification, they cannot replace what is really required – actual regulation of these Publisher platforms.

Given the vast amount of content that is constantly uploaded onto their platforms, and on to other websites on which they run ad campaigns (as Publishers), there is a dire need for minimum standards for brand safety to ensure proper ad placement and other brand safety measures, as well as setting out liability of platforms in case of non-adherence to the standards or default. In the event that there is an incident of inappropriate ad placement beyond the control of the Publisher (having exercised due diligence in preventing it), there should be mechanisms in place for an advertiser to settle such disputes directly with the Publisher. Specific rules in this regard have to be laid down ensuring that this process is time-bound, to ensure effective redressal. This can be akin to a take down notice system already in place for dealing with infringing copyrights. Another way to approach this is to impose indemnification obligations upon the Publisher in certain specified situations. However, this should also be narrowly worded to avoid unreasonable burden being imposed upon Publishers in genuinely unforeseeable circumstances, where the brand may not be facing substantial or even identifiable harm. At the end of the day the goal is to balance the brand's interests and the Publisher's liability, to ensure that liability is rightly attributed.

What if there is aggressive brand backlash on account of its ads being inadvertently placed alongside inflammatory content? In times when the Citizenship (Amendment) Act, 2019 is being widely protested across the country, what if a brand's ad runs on a video on which a politician labels the protesters as terrorists? Being associated with such a video could end up being detrimental to the brand. Depending on the climate and various factors, topics may or may not be considered to be offensive at any point in time. Hence, it is also important that the standards require constant updation of what is "inappropriate", to ensure that it is in sync with current environment. Necessarily, this will also involve differing standards for each region/country.

With Internet penetration expanding rapidly, online marketing assumes greater significance in today's age. Hence, brand safety assumes even greater importance, and it will be a space that is likely to develop rapidly.

Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.

I would like to thank Samheeta Rao, Partner at GameChanger Law Advisors for her inputs in preparing this write-up.

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.