In the last five years, we’ve seen dramatic progress in the development of machine learning, with AI becoming a game-changing technology with countless applications. As a nascent form of technology and one regarded as important to economic growth, some argue it should be unimpeded by regulatory constraints. Others take a different view, noting the importance of setting regulatory boundaries to protect established rights, including consumer rights.
Developments in AI are being monitored globally and with applications for its use featured in a wide array of sectors, a whole network of stakeholders are watching very carefully. It’s a powerful tool that we at the ASA and CAP make great use of to deliver effective regulation - but with the great power of AI comes great responsibility.
Read on for some (human generated) advice on the disclosure of AI in advertising and marketing.
To disclose or not to disclose?
Whilst the CAP and BCAP Codes do not contain AI-specific rules, our existing rules apply regardless of how content is generated, edited, or targeted. Marketers should, therefore, ensure that their use of AI doesn’t generate an issue with the existing Codes.
There is no blanket legal requirement in the UK to disclose the use of AI in ads and there are many schools of thought, around the world, on the suitability and effectiveness of regulators insisting on such disclosure in all circumstances. There are, however, varying requirements and rules in other countries, now or coming soon, as well as platform-based rules and industry initiatives all seeking to encourage responsible, and transparent use of AI in advertising and beyond.
Global developments in AI regulation
The EU’s AI Act became law in August last year and has been in the process of staggered implementation across Europe. This seeks to categorise AI use cases in terms of risk of harm, with lower risk uses being subject to minimal transparency requirements and high-risk applications being subject to much more stringent requirements. Though no longer in the EU, it’s clear that the impacts of European, and indeed global, legislation on AI will be felt in the UK too, particularly for brands advertising globally.
In terms of industry initiatives, in 2023 the Incorporated Society of British Advertisers (ISBA) and the Institute of Practitioners in Advertising (IPA) produced twelve guiding principles on the use of generative AI in advertising. One of these principles is that advertisers and agencies should ensure that their use of AI is transparent where it features prominently in an ad and is unlikely to be obvious to consumers.
Disclosure: When, and why it matters
In the absence of ASA precedent, it’s important to focus on why there may be a need to be disclose the use of AI. It’s easy to get caught up ticking an ‘AI disclosure’ box without really thinking about what harm you’re seeking to address and whether it’s effective at addressing that harm.
We recommend you ask yourselves two key questions:
- Is the audience likely to be misled if the use of AI is not disclosed? In other words, what’s the mischief, if any, that the disclosure is mitigating?
- If there is a danger of the audience being misled, is the disclosure clarifying the ad’s message or contradicting it?
Key considerations for disclosure
For years advertisers have used post-production techniques and other methods of manipulating sounds and images without a regulatory requirement to always disclose the use of those techniques – and without necessarily producing materially misleading content.
In many cases, AI is used in a similar way, making subtle non-material changes to improve a piece of content (removing unwanted background elements, improving the weather conditions, swapping a facial expression) or to create content that could have been produced using other techniques (such as using actors and photographers, employing animators, or using CGI), but faster and at a lower cost. In terms of consumer perception of advertising, there is relatively little difference.
However, it is important to remember that disclosure alone is very unlikely to mitigate the harm caused by a fundamentally misleading message. It would almost certainly be against the rules to make a misleading claim in an ad, either directly or by implication, and then seek to ‘disclaim’ that message by disclosing that AI was used. For example, it is likely to be materially misleading to include an AI generated image showing the effect of a cosmetic product that does not accurately reflect real-world results and rely on a disclosure that AI was used to rebut the misleading impression created.
That said, potentially, making clear that deepfake content featuring in an ad is only being used for comedic effect or that an influencer is AI-generated, could well help to negate an otherwise misleading impression. It will always come down to the specific content and context, and the likely audience interpretation.
Future of regulation and policy evolution
AI is challenging conventions and generating controversy, but it does not - yet – seem to be generating unique issues of direct relevance to the Advertising Codes, and we have set out in this article some of the issues with requiring ads that have been subject to AI to always be labelled. But, of course, the technology is moving rapidly, so we are ready to change our approach if that becomes the proportionate way to make ad regulation work in the future.
Developments in public policy around AI also have the potential to affect the way advertising using AI is regulated. We are closely monitoring policy developments both within the UK, and internationally, to ensure we can respond, as necessary.
For now, remember that the same rules apply in the same way, regardless of whether AI is used or not, and exercise caution around deepfakes and other potentially misleading uses of AI technology.
For bespoke advice on non-broadcast ads, our Copy Advice team is here to help you navigate these issues.
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