“The advertising sector can expect significant regulatory changes over the next 12 months and beyond, with a slew of European directives up for review and no shortage of domestic UK developments.”
Nick Johnson, Partner, Osborne Clarke
12 April 2016 – ePrivacy Directive
On 12 April 2016 a consultation was launched on revisions to the existing ePrivacy Directive.
The ePrivacy Directive contains rules on direct marketing using electronic means, as well as specific measures governing telecommunications providers.
Revisions are needed to implement the European Commission’s Digital Single Market strategy, and to ensure that the ePrivacy Directive aligns with the new GDPR.
Possible areas for change include amendments to cookie rules, and potential changes to the scope of current rules on unsolicited commercial communications.
A new draft ePrivacy Directive is expected to be published by the end of 2016. The consultation closes on 5 July 2016.
30 April 2016 – Net neutrality
Certain provisions of the EU Net Neutrality Regulation come into force on 30 April 2016.
Network-level blocking of specific content types is heavily restricted under the Net Neutrality Regulation and these provisions will therefore give online publishers and advertisers a new argument against network-level adblockers.
20 May 2016 – Tobacco Products Directive
The Tobacco Products Directive, which has to be implemented in EU Member States by 20 May 2016, will result in changes to how and under what conditions e-cigarettes may be advertised. At the time of writing, the relevant national legislation has not been finalised and the position in Scotland may diverge from that in the rest of the UK. However, it is likely that advertising of nicotine-containing e-cigarettes will be prohibited other than for products licensed as medicines.
Q2 2016 – General Data Protection Regulation (GDPR)
Following political agreement of the new EU GDPR, the final version of the GDPR was approved by the European Parliament on 14 April 2016. We expect it to be passed into EU law in the second quarter of 2016 and to be effective in Member States two years later.
It seems therefore that businesses will have until around the middle of 2018 to prepare for the new regime, although with the GDPR introducing major changes to the data protection regime, businesses will need to begin preparing for the new regime well in advance of that.
Q2 2016 – New rules for advertising food and soft drinks high in fat, salt or sugar (HFSS)
In September 2015, the Committee of Advertising Practice announced it would be consulting on changes to its non-broadcast advertising code, including the potential introduction of rules on the targeting of HFSS food and drinks to children. Currently such rules are found only in the broadcast advertising code.
Q2/Q3 2016 – Pricing Practices Guide (PPG)
The Chartered Trading Standards Institute closed its consultation on a proposed new PPG on 20 January 2016. It has promised “in due course” to produce a summary of responses and a final draft of the guidance. Many of the old PPG rules of thumb – such as the “28 day rule” – are likely to be consigned to history, as the new draft seeks to align more closely with the Unfair Commercial Practices Directive.
Q2/Q3 2016 – Audiovisual Media Services Directive (AVMSD)
Following a public consultation in 2015, the AVMSD is now set to be reviewed, with potential changes that could affect the advertising of alcohol and/or HFSS foods.
For more information on reform of the AVMSD see here.
2016 – Misleading and Comparative Advertising Directive
As part of the European Commission’s “REFIT” fitness check of consumer law, the Misleading and Comparative Advertising Directive will be subject to evaluation in 2016, including various proposed consultation processes.
2016 – Unfair Commercial Practices Directive
As part of the same REFIT initiative, the Unfair Commercial Practices Directive will also be reviewed in 2016. The European Commission has not yet published further details of the anticipated timings for the review.