Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697750973524.pdf (Ireland)
Advertising Standards Authority for Ireland March 2021 Online Safety and Media Regulation Bill General Scheme Written Submission by the Advertising Standards Authority for Ireland (ASAI) Section 1.

Topic Overview 2.

3.

4.

5.

6.


Executive Summary Recommendations for Action by the Government Closing Comments Summary of Recommendations Appendices: Appendix I: Extract from the ASAI Code: Scope and Application Appendix II: Extract from the ASAI Code: Children Appendix III: Commentary on “The Online Safety & Media Regulation Bill Policy Paper – Regulating Harmful Online Content” Page 2 6 8 12 13 15 16 18 Page 1 of 20 1.

2.

3.

4.

5.

6.

1.

Overview 1.1.

1.2.

1.3.

1.4.


The ASAI, as the recognised advertising regulator, notes the invitation issued to the On-Demand Audiovisual Services Group (ODAS), of which the ASAI is a member, to make a Written Submission on the General Scheme of the Online Safety and Media Regulation Bill.

This Written Submission is made by the ASAI, as the independent Irish advertising regulator.
The ASAI has acquired in-depth knowledge of relevant aspects and application of the AVMSD and has had close associations over 40 years in the areas of broadcast advertising, with RTE being a founder member, RTE’s participation on both the Board and the independent Complaints Committee, and the participation of the Broadcasting Authority of Ireland (BAI) and its predecessors on the independent Complaints Committee.
This is in addition to the ASAI’s extensive work since 2009 in relevant areas of online content.

Further details are provided under appropriates Heads below.

The ASAI has identified areas within the General Scheme that are appropriate and relevant to the ASAI’s extensive remit and these are addressed below against the Heads concerned, preceded by a preamble to briefly indicate the ASAI’s purpose, function and deliverables to stakeholders and society in general.
In media, the ASAI has had a close working infinity with the Broadcasting Authority of Ireland (BAI) since the BAI’s inception, with the BAI CEO being a member of the ASAI’s adjudicating independent Complaints Committee for a series of terms.

The BAI CEO also currently chairs the Alcohol Marketing Communications Monitoring Body (AMCMB) – protection for minors against exposure to alcohol advertising and marketing - for which the ASAI operates all secretarial, investigation and complaints undertakings.
On digital, the ASAI has formed strong links with major digital platforms headquartered in Ireland and was involved in the process that resulted in Google becoming a member of the European Advertising Standards Alliance, which resulted in support, including financial funding, accruing to the European advertising self-regulatory network.

ASAI: purpose, functions, expertise and deliverables ASAI – the recognised Irish regulator, highly embedded in the advertising ecosystem 1.5.

1.6.

1.7.
1.6.

1.7.

The ASAI is the recognised regulator for advertising in Ireland.

Now established 40 years, and as a not- for-profit and self-regulatory organisation (SRO), it is independent of any State support or burden on the State/taxpayer through its industry-led funding.

The ASAI, with immense expertise and as a contemporary regulator, is currently enforcing the 7th iteration of its extensive Code.
The Code remit incorporates all media including linear and non-linear broadcast, digital (web, social, mobile, in-game ads, influencer marketing (user-generated commercial content), vlogs and blogs, etc.

), print, outdoor, cinema, brochures/leaflets, etc.1 The Code scope and application is broad (covering misleading advertising, taste and decency issues etc.)

and comprehensive (covering 14 specific areas including Children, Food, Alcoholic drinks, Gambling, Health/Beauty).
Code editions are future proofed to encompass industry and societal change.

Primary responsibility for compliance with the Code rests with advertisers which means that the ASAI can take 1 Appendix I sets out the full remit of the ASAI 2 action regardless of which medium or platform an advertisement appears on.

Media in Ireland, both off and online, support the ASAI Code and its implementation.

1.8.

1.9.
1.8.

1.9.

The protection of minors remains a category of crucial importance to the ASAI and its Code (7th Edition containing specific reference to children in 72 sections) having introduced initial protections since 1981 at the organisation’s foundation.

Further details are contained in sections below.

The Code fully recognises this category in society and the added protections that the ASAI Code considers essential for children.
The Code in this regard covers a number of broad areas with associated detailed provisions specified in the Code including: • Protections against matters related to physical, mental or moral harm and/or likely to frighten or disturb children • Not to exploit the loyalty, credulity, vulnerability or lack of experience of children • Promotions to children and related promotional marketing practices • Marketing communications prohibited from being directed at children or in any way to encourage them to start drinking • Marketing communications for food and beverages addressed to children • Protections over marketing communications related to gambling 1.10.
The ASAI Code Section 7: ‘Children’ is enclosed (Appendix II, page 16) for reference.

1.11.

The ASAI has noted various references to children and minors in the General Scheme and has made observations, comments and recommendations in the section ‘Recommendations for action by the Government’.

1.12.
1.12.

The ASAI’s mission is to ensure the highest standards of advertising in Ireland, across all media (offline and online) through the enforcement of its Code – in the interests of consumers, business, society and advertising generally - resulting in consistency in marketing communications across all media.

The ASAI works with the European Advertising Standards Alliance (EASA) to develop and maintain high advertising standards across Europe.

ASAI – Continuously setting and improving standards 1.13.
The ASAI endeavours to reflect the needs and sentiments of an ever-evolving society through setting advertising standards, underpinned by the principles of being legal, decent, honest and truthful (based on the International Chamber of Commerce Advertising and Marketing Communications Code2).

Essentially, ASAI promotes trustworthy and responsible advertising.

Self-Regulatory Organisation (SRO) Model and Co-Regulation 1.14.
The SRO self-financing model operated by the ASAI is complementary to legislative controls.

It operates flexibly, is more readily adaptable than statute and is easily accessible to all stakeholders/service users.

It is more appropriate than legislation for subjective/judgemental areas (decency, discrimination, fear, etc.).

1.15.
1.15.

The system of advertising self-regulation has been well established in Ireland, and indeed Europe, for many decades and has been shown to be flexible in its approach to new developments in the advertising eco-system.

2 https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/ 3 1.16.

The ASAI has a long history of working in the co-regulation space with the Department of Health (Alcohol Marketing Communications Monitoring Body –AMCMB Code).
International relationships and cooperation 1.17.

The European Advertising Standards Alliance (EASA), co-founded by the ASAI, is the single voice on advertising self-regulation issues in Europe and represents 27 national advertising self-regulatory organisations3.
EASA’s critical role, based in Brussels, incorporates the following: 1.17 (a) European Commission: regular representation and lobbying at the European Commission covering relevant areas such as the New Consumer Agenda, Green Consumption Pledge, Farm to Fork Strategy, Digital Services Act, AVMSD (both the Digital Services Act and the AVMDS having provisions related to the protection of minors).
1.17 (b) European Regulators Group for Audiovisual Media Services (ERGA), frequent liaison with ERGA on matters such as the AVMSD and vlogger and influencer marketing.

1.18.

The ASAI’s CEO is currently a Vice-Chair of EASA.

1.19.

EASA and its members develop best practice for advertising self-regulation.
It is currently working on developing Artificial Intelligence (AI) and data driven monitoring projects, already developed and in use by the Advertising Standards Authority UK (ASA) and which the ASAI will participate in.

This intervention has the potential and capacity to revolutionise monitoring high volume advertising for early detection of advertising breaches and in instances before large scale consumers are exposed to it.

1.20.
1.20.

Complaints handling access for EU citizens: EASA has operated a cross-border complaints system since 1992 which allows citizens in one member state submit a complaint to their local advertising SRO about advertising on media in another country.

The local advertising SRO then ensure that complaint is submitted to the appropriate national advertising SRO who investigates and resolves the complaint under the national advertising Code of the country of origin of the media.
ASAI – 6 Pillars and Governance 1.21.

The ASAI focuses on 6 primary organisational pillars | Policy Code Awareness Complaints (37,000)* Copy Advice (3,000 requests)* Monitoring (29,000 ads)* *over a period of our 40 years’ service 1.22.
In line with the developing growth of online advertising exceeding 40% of all advertising media space, the ASAI has experienced a similar percentage shift in complaints from being related to advertising on traditional media to the digital media including the online platforms.

1.23.

The ASAI (a not-for-profit Company limited by guarantee) is governed by a Board of 14 non-executive directors, representing the advertising industry (advertising agencies, media and advertisers).

1.24.
1.24.

The ASAI provides Alternative Dispute Resolution (ADR) through an independent Complaints Committee of 13 non-industry/industry members and an independent chairperson who adjudicate on 3 https://www.easa-alliance.org/ 4 complaints (over 8,350* formal and published adjudications and over 6,150* upheld complaints).

The ASAI’s Review Panel assess requests for reviews of Complaints Committee adjudications.

1.25.
1.25.

The ASAI is, as the advertising regulator for all media in Ireland, the organisation that Irish society approach with their complaints about advertising content, including that published by the Irish broadcasters.

Our complaints process is complainant-centric, and complainants are not required under the ASAI procedure to have submitted their complaint to either the advertiser or the media before availing of the ASAI service, which is free of charge.
Powerful Impact of the ASAI influence and sanctions 1.26.

The ASAI has over a 98% success rate in having advertising amended/withdrawn that may be in breach of the Code.

The media, including digital media providers, will decline to publish material in breach of the Code.

1.27.

Adjudications, published by the media, constitute a strong ‘name and shame’ sanction, with associated brand reputation issues and direct/indirect cost through loss of advertising production costs.
The ASAI’s formal adjudications, generally published bi-monthly, attract strong media interest; the ASAI are regularly invited on radio, such as RTE’s News at One and Drivetime shows as well as Newstalk and Today FM, and a range of local and regional radio stations, to discuss its adjudications.

1.28.

The ASAI can impose a compulsory copy advice sanction.

Our Reach 1.29.
Our Reach 1.29.

Our brand, reputation and regulatory role enables us to access relevant C-suite in organisations – CEO, CMO, CFO or key decision makers – and, in many instances, regardless of their size.

Recent Engagements 1.30.


The ASAI recent significant stakeholder engagements and contributions include: • Food Advertising and Marketing (Department of Health | British and Irish parliamentary Association | Joint Oireachtas Committee on Children and Youth Affairs) • Future Licensing and Regulation of gambling in Ireland (Department of Justice) • • Mobile and Broadband Taskforce.
(Department of Arts, Heritage, Regional, Rural and Gaeltacht Influencer Marketing (CCPC) – the ASAI’s 2021 webinar had in excess of 260 participants Affairs, and the Department of Communications, Climate Action & Environment) • Political advertising (Department of An Taoiseach) 5 2.

Executive Summary 2.1.


The Executive Summary below covers key areas which the ASAI considers are of particular critical importance as core contributions to the proposed legislation and to the ongoing significant contribution of the ASAI to standards, advertising content and to society, especially minors.

2.1 (a) The ASAI is the recognised advertising regulator, highly embedded in the advertising ecosystem with an independent adjudication process.
2.1 (b) 2.1 (c) 2.1 (d) 2.1 (e) 2.1 (f) 2.1 (g) 2.1 (h) 2.1 (i) 2.1 (j) 2.1 (k) The ASAI has immense expertise and, as a contemporary regulator, has in-depth knowledge of relevant aspects and application of the AVMSD and the currently revised AVMSD The ASAI’s mission is to ensure the highest standards of advertising in Ireland, across all media (offline and online) through the enforcement of its Code – in the interests of consumers, business, society and advertising generally, resulting in consistent standards in marketing communications across all media.
The ASAI Code remit covers all commercial marketing communications in all media including linear and non-linear broadcast, digital (web, social, mobile, in-game ads, influencer marketing (user-generated commercial content), vlogs and blogs, etc.)

The Code scope and application is broad with the protection of minors remaining a category of crucial importance to the ASAI and its Code (with specific reference to children in 72 sections).
The ASAI has had a close working infinity with the Broadcasting Authority of Ireland (BAI) since the BAI’s inception (the BAI CEO is a member of the ASAI’s adjudicating independent Complaints Committee) The ASAI is highly flexible and proactively addresses new developments in society and in the advertising eco-system, ensuring the Code remit keeps pace.

The ASAI, a member of the European Advertising Standards Alliance, participate in the EASA operated cross-border complaints system.
The ASAI has broad ranging engagements with state agencies, government departments, NGOs and sectoral representative groups.

The ASAI recommends that the option that the Commission can facilitate a complaints mechanism be retained as it is currently drafted.
(Head 10 – Functions) The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission promotes, where appropriate, the development of alternative dispute resolution procedures as a means of resolving complaints (Head 10 – Functions) 6 2.1 (l) The ASAI recommends that the Commission be required to take account of established non- statutory mechanisms as part of the regulatory framework.
(Head 13 – Codes of Practice & Head 50A – Online Safety Codes) 2.1 (m) The ASAI recommends that the final legal text mirrors the current language which provides for appropriate latitude for the Commission to enter into cooperation agreements with other bodies as it sees fit.
(Head 29 – Cooperation with other bodies) 2.1 (n) 2.1 (o) The ASAI recommends, in the furtherance of the application of standards, that where the Commission has facilitated a complaints system, entered into a cooperation agreement or has supported a self-regulatory approach to an area within its remit, funding from the levy is allocated to support the relevant activities and that the legislation should be amended to provide for the Commission so directing funds (Head 40 – Levy) The ASAI recommends an amendment to paragraph 2 of Head 73 by the addition of a sub- section (c) below.
2) The Commission may co-operate with or give assistance to one or more persons (whether residing or having their principal place of business in the State or elsewhere) in— (a) (b) the preparation by that person or those persons of standards, or the establishment and administration by that person or those persons of a self regulatory system, in respect of audiovisual or audio content or related electronic media, or an existing self-regulatory system who apply standards in respect of audiovisual or audio content or related electronic media.
(Head 73 – Cooperation with other parties – standards and self-regulation) (c) 7 3.
Recommendations for action by the Government include: 3.1 Head 10 – Functions 3.1 (a) 3.1 (b) 3.1 (c) The ASAI welcomes the intention that the Commission shall establish or facilitate a complaints mechanism or mechanisms covering some or all of the following categories: (a) Audiovisual media services (b) sound media services (c) designated online services The ASAI’s Code of Standards for Advertising and Marketing Communications has a broad- based scope that currently encompasses commercial communications on all three services referenced.
The ASAI considers it is appropriate that the Commission is provided with the option to decide between either establishing or facilitating a complaints mechanism or mechanisms and recommends that the current text be retained as it is currently drafted.

3.1 (d) ASAI Recommendation: can facilitate a complaints mechanism be retained as it is currently drafted.
The ASAI recommends that the option that the Commission 3.1 (e) 3.1 (f) The ASAI notes that ‘alternative dispute resolution’ (ADR) is recognised and accepted as an integral part of the proposed legislation.

The ASAI, functioning as an ADR entity, welcomes this.
ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission promotes, where appropriate, the development of alternative dispute resolution procedures as a means of resolving complaints.
3.2 Head 13 – Codes of Practice 3.2 (a) 3.2 (b) The ASAI would wish the members to note the ASAI Code Standards for Advertising and Marketing Communications covers commercial marketing communications in all media and applies the rules not only in the letter but in the spirit of the Code.

The system of advertising self-regulation has been well established in Ireland, and indeed Europe, for many decades and has been shown to be flexible in its approach to new developments in the advertising eco-system.
In the Netherlands, the advertising self- regulatory body has, through a cooperation agreement with the Dutch Media regulator, responsibility through its Code, for the equivalent provisions of the previous AMVSD.

Likewise, while no longer an EU member, in the UK, legislation proved that Ofcom could designate another body to carry out some of its functions, which they did when they designated certain of their functions to the UK Advertising Standards Authority.
The UK ASA was designated as the UK regulator for broadcast advertising and for on-demand advertising.

3.2 (c) The ASAI recommends that the Commission be required to ASAI Recommendation: take account of established non-statutory mechanisms as part of the regulatory framework.

8 3.3 Head 29 - Cooperation with other bodies 3.3 (a) The ASAI welcomes this provision.
3.3 (b) The ASAI recommends that the final legal text mirrors the ASAI Recommendation: current language which provides for appropriate latitude for the Commission to enter into cooperation agreements with other bodies as it sees fit.

3.4 Head 34 - External cooperation function 3.4 (a) The ASAI welcomes this provision as our experience demonstrates that cooperation between regulatory bodies ensures that consumer concerns can be addressed regardless of the location of the consumer and a regulated entity.
The ASAI is a member of the European Advertising Standards Alliance which brings together 27 bodies in Europe.

EASA has operated a cross-border complaints system since 1992 which allows citizens in one member state submit a complaint to their local advertising SRO about advertising on media in another country.
The local advertising SRO then ensure that complaint is submitted to the appropriate national advertising SRO who investigates and resolves the complaint under the national advertising Code of the country of origin of the media.
3.4 (b) ASAI Recommendation: The ASAI recommends that the final legal text mirrors the current language which provides for appropriate latitude for the Commission to enter into cooperation agreements with other bodies outside the State which perform similar functions to the Commission, including members of the European Regulators Group for Audiovisual Media Services.

3.5 Head 40 – Levy 3.5 (a) The ASAI supports the principle that regulated entities support the funding of the regulator.
The ASAI notes that various Heads of the Bill provide that the Commission may facilitate a complaints system (Head 10 (1) (xi)), enter into a cooperation agreement with other bodies (Head 29) or support a self-regulatory approach (Head 73) to an area(s) within its remit.

The ASAI welcomes this collaborative approach and notes that such situations may incur resource costs for the other bodies.
The ASAI considers that it would be appropriate for the Commission to direct appropriate funding to the bodies involved.
3.5 (b) ASAI Recommendation: The ASAI recommends, in the furtherance of the application of standards, that where the Commission has facilitated a complaints system, entered into a cooperation agreement or has supported a self-regulatory approach to an area within its remit, funding from the levy is allocated to support the relevant activities and that the legislation should be amended to provide for the Commission so directing funds.
3.6 Head 49C – Definition of age-inappropriate online content 3.6 (a) The ASAI notes the definitions for age-inappropriate online content.

3.6 (b) ASAI Recommendation: definitions contained in the General Scheme.
The ASAI recommends that the final legal text reflects the 9 3.7 Head 50A – Online safety codes 3.7 (a) 3.7 (b) The ASAI notes the provision that the Commission will prepare, and from time to time revise, online safety codes governing standards and practices for designated online services and that amongst the matters that may be addressed are commercial communications on such services and user complaint and/or issues handling mechanisms operated by designated online services or categories thereof.
The ASAI would wish the members to note the ASAI Code – ‘Code of Standards for Advertising and Marketing Communications in Ireland - covers commercial marketing communications in all media and applies the rules not only in the letter but in the spirit of the Code.

The system of advertising self-regulation has been well established in Ireland, and indeed Europe, for many decades and has been shown to be flexible in its approach to new developments in the advertising eco-system.
In the Netherlands, the advertising self-regulatory body has through a cooperation agreement with the Dutch Media regulator, responsibility through its Code, for the equivalent provisions of the previous AMVSD.

Likewise, while no longer an EU member, in the UK, legislation proved that Ofcom could designate another body to carry out some of its functions, which they did when they designated certain of their functions to the UK Advertising Standards Authority.
The UK ASA was designated as the UK regulator for broadcast advertising and for on-demand advertising.

3.7 (c) The ASAI recommends that the Commission be required to ASAI Recommendation: take account of established non-statutory mechanisms as part of the regulatory framework.
3.8 Head 50B – Compliance assessments 3.8 (a) 3.8 (b) The ASAI welcomes that the Media Commission will have the powers to proactively require information requesting compliance data from designated online service and recommends that the final legal text reflects this text/approach.
ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission will have powers to proactively require information requesting compliance data from designated online service.
3.9 Head 52A – Auditing complaints handling 3.9 (a) 3.9 (b) The ASAI welcomes that the Media Commission will have the powers to proactively audit user complaint and/or issues handling mechanisms operated by designated online services and recommends that the final legal text reflects this text/approach.
ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission will have the powers to proactively audit user complaint and/or issues handling mechanisms operated by designated online services.

10 3.10 Head 52B – Systemic complaints scheme 3.10 (a) The ASAI welcomes the proposal in relation to a Systemic complaints scheme and recommends that the final text reflects this provision.
3.10 (b) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach in relation to the Systemic complaints scheme and the designation of nominated bodies.

While ultimately a matter for the Commission, we would recommend that ASAI be designated a nominated body.
3.11 Head 55 – Voluntary arrangements 3.11 (a) The ASAI notes the provision that the Media Commission may enter into voluntary arrangements with any relevant online services not established in the State and welcomes this provision in the interests of a robust consumer protection regulatory framework.

The ASAI would recommend the recommends that the final text reflects this provision.
3.11 (b) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission may enter into voluntary arrangements with any relevant online services not established in the State.
3.12 Head 58 – Registration of on-demand audio visual media services 3.12 (a) The ASAI welcomes the Approach set out in the explanatory note that it is “intended that the focus of the regulator will be on ensuring that large services and services which are providing content which may harm the public interest are registered.
It is not intended that the regulator will pursue individuals or entities that are operating innocuous, small scale ODAVMS.” 3.12 (b) The ASAI considers that this is a proportionate approach and recommends that it is adopted in the final text.
3.12 (c) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission will focus on ensuring that large services and services which are providing content which may harm the public interest are registered.
3.13 Head 62 – Media Codes 3.13 (a) The ASAI Code of Standards for Advertising and Marketing Communications, which covers commercial marketing communications in all media in Ireland, including broadcast and online, has evolved over time to take account of societal concerns.

A collaborative consultation approach with all stakeholders including statutory agencies is followed.
The ASAI is currently proactively examining areas where there may be differences with the AVMSD with a view to considering whether, and how, appropriate alignment could be undertaken.

11 3.14 Head 73 – Cooperation with other parties – standards and self-regulation 3.14 (a) The ASAI welcomes the reference to self-regulation in the OSMR Bill.
The ASAI has a long history of cooperation with other bodies, including statutory agencies in Ireland and advertising self-regulatory organisations both at European level and globally.

A key element of the AVMDS was the recognition of the place of advertising self-regulation in the regulatory framework which states at Article 4a (1) in relation to self-regulatory codes that: “….
Those codes shall: (a) be such that they are broadly accepted by the main stakeholders in the Member States concerned; clearly and unambiguously set out their objectives; provide for regular, transparent and independent monitoring and evaluation of the achievement of the objectives aimed at; and provide for effective enforcement including effective and proportionate sanctions.

(b) (c) (d) 3.14 (b) The ASAI considers that the system and Code that it operates meets the criteria set out in the AVMSD.
3.14 (c) The ASAI notes however that the current text is drafted from the point of view of the creation of a self-regulatory system.

3.14 (d) The advertising self-regulatory system operated by the ASAI has been in existence for 40 years and has over that time evolved to ensure its remit covers commercial communications in all media, including linear and non-linear broadcast and online.
3.14 (e) ASAI recommendation: The ASAI recommends an amendment to paragraph 2 of Head 73 by the addition of a sub-section (c) below.
2) The Commission may co-operate with or give assistance to one or more persons (whether residing or having their principal place of business in the State or elsewhere) in— (a) (b) the preparation by that person or those persons of standards, or the establishment and administration by that person or those persons of a selfregulatory system, in respect of audiovisual or audio content or related electronic media, or an existing self-regulatory system who apply standards in respect of audiovisual or audio content or related electronic media.
(c) 4.

Closing comments 4.1.

This concludes the submission by the ASAI.

4.2.

The ASAI respectfully request the members of the Joint Committee to take full account of all matters raised in its submission and to implement its recommendations.

ASAI Submission dated 5 March 2021 12 5.


5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 Summary of Recommendations Head 10 – Functions 5.1 (a) The ASAI recommends that the current text that the ASAI Recommendation: Commission shall establish or facilitate a complaints mechanism be retained as it is currently drafted.
5.1 (b) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission promotes, where appropriate, the development of alternative dispute resolution procedures as a means of resolving complaints.

Head 13 – Codes of Practice 5.2 (a) ASAI Recommendation: The ASAI recommends that the Commission be required to take account of established non-statutory mechanisms as part of the regulatory framework.
Head 29 - Cooperation with other bodies 5.3 (a) The ASAI recommends that the final legal text mirrors the ASAI Recommendation: current language which provides for appropriate latitude for the Commission to enter into cooperation agreements with other bodies as it sees fit.
Head 34 - External cooperation function 5.4 (a) ASAI Recommendation: The ASAI recommends that the final legal text mirrors the current language which provides for appropriate latitude for the Commission to enter into cooperation agreements with other bodies outside the State which perform similar functions to the Commission, including members of the European Regulators Group for Audiovisual Media Services.
Head 40 – Levy 5.5 (a) ASAI Recommendation: The ASAI recommends, in the furtherance of the application of standards, that where the Commission has facilitated a complaints system, entered into a cooperation agreement or has supported a self-regulatory approach to an area within its remit, funding from the levy is allocated to support the relevant activities and that the legislation should be amended to provide for the Commission so directing funds.
Head 49C – Definition of age-inappropriate online content 5.6 (a) ASAI Recommendation: definitions contained in the General Scheme.

The ASAI recommends that the final legal text reflects the Head 50A – Online safety codes 5.7 (a) ASAI Recommendation: The ASAI recommends that the Commission be required to take account of established non-statutory mechanisms as part of the regulatory framework.
Head 50B – Compliance assessments 5.8 (a) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission will have powers to proactively require information requesting compliance data from designated online service.
13 5.9 Head 52A – Auditing complaints handling 5.9 (a) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission will have the powers to proactively audit user complaint and/or issues handling mechanisms operated by designated online services.
5.10 Head 52B – Systemic complaints scheme 5.10 (a) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach in relation to the Systemic complaints scheme and the designation of nominated bodies.

While ultimately a matter for the Commission, we would recommend that ASAI be designated a nominated body.
5.11 Head 55 – Voluntary arrangements 5.11 (a) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission may enter into voluntary arrangements with any relevant online services not established in the State.
5.12 Head 58 – Registration of on-demand audio visual media services 5.12 (a) ASAI Recommendation: The ASAI recommends that the final legal text reflects the current text/approach that the Media Commission will focus on ensuring that large services and services which are providing content which may harm the public interest are registered.
5.13 Head 62 – Media Codes 5.13 (a) No recommendation 5.14 Head 73 – Cooperation with other parties – standards and self-regulation 5.14 (a) ASAI recommendation: The ASAI recommends an amendment to paragraph 2 of Head 73 by the addition of a sub-section (c) below.
(a) (b) 2) The Commission may co-operate with or give assistance to one or more persons (whether residing or having their principal place of business in the State or elsewhere) in— the preparation by that person or those persons of standards, or the establishment and administration by that person or those persons of a selfregulatory system, in respect of audiovisual or audio content or related electronic media, or an existing self-regulatory system who apply standards in respect of audiovisual or audio content or related electronic media.
(c) 14 Appendices Appendix I Code of Standards for Advertising and Marketing Communications in Ireland Section 2: Scope and Application The Code applies to (2.2) (a) Marketing communications in newspapers, magazines and other printed publications, including free distribution newspapers and magazines.

(b) Marketing communications in posters and other promotional media in public places, including moving (c) images and digital screens.
Marketing communications in brochures, leaflets, circulars, mailings, fax transmissions, emails and text transmissions.

(d) Marketing communications broadcast on television or radio or screened in cinemas or with video, DVD or Blu-ray.
(e) Marketing communications carried on any digital and electronic storage materials, media and/or computer systems including, but not limited to, online advertisements in paid-for space (including banner or pop up advertisements and online video advertisements); paid-for search listings; preferential listings on price comparison sites; viral advertisements; in-game advertisements; commercial classified advertisements; advergames in-display advertisements; advertisements transmitted by Bluetooth; advertisements distributed through web widgets and online sales promotions and prize promotions.
Promotional marketing and sales promotions.

Advertorials.

(f) (g) (h) Marketing communications in non-paid-for space online, under the control of the advertiser or their agent, including but not limited to advertisers’ own websites, that are directly connected with the supply or transfer of goods, services, facilities, opportunities, prizes and gifts or which consist of direct solicitations for donations.
feature that 15 Appendix II Code of Standards for Advertising and Marketing Communications in Ireland Section 7: Children 7.1 The ASAI acknowledges that parents and guardians have primary responsibility for children.

7.2 7.3 7.4 7.5 Children lack adults’ knowledge, experience and maturity of judgement.
Marketing communications addressed directly or indirectly to children, or marketing communications likely to be seen or heard by a significant proportion of them, should have regard to the special characteristics of children and the ways in which they perceive and react to marketing communications.

The way in which children perceive and react to marketing communications is influenced by their age, experience and the context in which the message is delivered.
For example, marketing communications that are acceptable for young teenagers will not necessarily be acceptable for younger children.

The ASAI will take these factors into account when assessing marketing communications and their compliance with the Code.

Marketing communications should contain nothing that is likely to result in physical, mental or moral harm to children or that is likely to frighten or disturb them, except to promote safety or in the public interest.
In principle and subject to the qualifications above, the following rules apply.

(a) Children should not be portrayed in a manner that offends against accepted standards of good taste and decency.

Children should not be encouraged to enter into unsafe situations or strange places or talk to strangers, including, for example, for the purpose of making collections or accumulating labels, wrappers or coupons.
Children should not be shown in morally or physically dangerous situations or behaving dangerously in the home or outside.

Children should not be shown unattended in street scenes unless they are old enough to take responsibility for their own safety.

Children should not be encouraged to engage in, or be portrayed engaging in, anti-social behaviour or bullying.

(b) (c) (d) (f) (e) Where children appear as pedestrians or cyclists they should be seen to observe the Rules of the Road.
Special attention should be paid, where relevant, to the use of child car seats and the wearing of car seat-belts and safety helmets.

Younger children in particular should not be shown using or in close proximity to dangerous substances or equipment without direct adult supervision.

Examples include matches, petrol, gas, medicines and certain household substances, as well as certain electrical appliances and machinery, including agricultural equipment.
An open fire in a domestic scene should always have a fireguard clearly visible when a young child is included in the scene.

Given that children may imitate what they see in marketing communications, they should not be encouraged, whether directly or indirectly, to copy any practice that might be unsafe.

(h) (g) Marketing communications addressed to children should not exploit the loyalty, credulity, vulnerability or lack of experience of children.
For example: (a) Children or their family should not be made to feel inferior or unpopular for not buying an advertised product.

Children or their family should not be made to feel that they are lacking in courage, duty or loyalty if they do not buy or do not encourage others to buy a particular product.

(b) 16 (c) (d) Marketing communications should not undermine the authority, responsibility or judgement of parents, guardians or other appropriate authority figures.
Marketing communications should not include any appeal to children to persuade their parents or other adults to buy advertised products for them.

A product that is part of a series should be clearly indicated as such and in all such cases, marketing communications should include the method of acquiring the series.

7.6 Marketing communications addressed to children: (a) (b) Should not feature products that are unsuitable for those children.
Should not exaggerate what is attainable by an ordinary child using the product and should not make it difficult to judge the actual size, characteristics and performance of any product advertised.

Should not ask children to disclose personal information about themselves or their families without having first obtained permission from their parents or guardians.

Should not minimise the price of products by the use of such words as “only” or “just”.
Should make it clear if extra items are needed to use the product (for example, batteries) or to produce the result shown or described (for example, paint, dolls clothes).

(c) (d) (e) Promotions and Children 7.7 In addition to complying with the provisions set out in Section 5: Promotional Marketing Practices, promotions addressed to or likely to attract children: (a) (b) Should not offer promotional products that are unsuitable for distribution to children.
Should be carried out responsibly, taking into account the location in which the promotion is conducted.

Should make it clear that parental permission is required if expensive and/or inappropriate prizes and incentives might cause conflict between children and their parents.

Should allow a sufficient timeframe for participation in a manner that will reflect moderate consumption of a product.

Should clearly explain the number and type of any additional proofs of purchase needed to participate.
Should contain a prominent closing date.

Should not exaggerate the value of prizes or the chances of winning them.

Should not exploit children’s susceptibility to charitable appeals.
(c) (d) (e) (f) (g) (h) 17 Appendix III: The Online Safety & Media Regulation Bill Policy Paper – Regulating Harmful Online Content The ASAI wishes to address and explore some particular areas that are factually incorrect and are, therefore, of critical concern regarding content contained in the following paper: The Online Safety & Media Regulation Bill Policy Paper – Regulating Harmful Online Content, Section 4, Approaches to Regulating Harmful Content, in relation to User Generated Content.
The paper, in the section referred to, currently states the following: “The Advertising Standards Authority of Ireland has a role in relation to online advertising in Ireland.

However, this is on a voluntary self-regulatory basis and isn’t likely to satisfy the requirements of the revised Directive or align with public expectation of moving away from self-regulation in the online space.
Furthermore, any role that the ASAI could have would only relate to non-user-generated AVCC and not user-generated AVCC which would likely create confusion among the public as to what standards apply to what content and which regulatory body is responsible for enforcing these standards.

It may also lead to higher standards applying to user-generated AVCC and lower standards applying to non-user- generated AVCC as the latter would be subject to a non-statutory form of regulation.
Given these issues and the lack of an overall advertising regulator in Ireland, it is likely that the Media Commission would fulfill this role in the first instance.

This can be done through the drafting of codes, guidance materials and through various oversight, reporting and compliance provisions.” There are a number of areas that the ASAI needs to address in this text.

It is factually incorrect to state that the ASAI does not have a role in relation to user-generated AVCC.
The ASAI Code sets out its remit in the Scope and Application Section and in relation to online marketing communications states: Marketing communications in non-paid-for space online, under the control of the advertiser or their agent, including but not limited to advertisers’ own websites, that are directly connected with the supply or transfer of goods, services, facilities, opportunities, prizes and gifts or which consist of direct solicitations for donations.
Commercial user generated content, such as that created by influencers (whether as posts, stories or videos), is classified as marketing communication material and is within remit of the Code.

Generally, and in relation to vloggers, content created by vloggers to promote their own products/services, and content created by them on behalf of a third-party where payment or remuneration is involved, constitutes commercial marketing communications.
A number of the ASAI Adjudications demonstrating that the ASAI has been investigating and deciding on such user-generated content since 2016 are included in an embedded document at the end of Appendix II.

While the ASAI system is a self-regulatory one, the AVMS Directive provides the following: Article 4a 1.
Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct adopted at national level in the fields coordinated by this Directive to the extent permitted by their legal systems.
Those codes shall: 18 (a) (b) (c) (d) be such that they are broadly accepted by the main stakeholders in the Member States concerned; clearly and unambiguously set out their objectives; provide for regular, transparent and independent monitoring and evaluation of the achievement of the objectives aimed at; and provide for effective enforcement including effective and proportionate sanctions.
The ASAI, in conjunction with the European Advertising Standards Alliance (representing 27 national self- regulatory organisations), has carried out, and continues to carry out, extensive work associated with the pending implementation of the Directive.

In addition, again while the ASAI is a self-regulatory system, it applies the same standards to all commercial marketing communications, ensuring that standards are the same and consistent for all marketing communications across all media.
This is reflective of the ASAI being the established advertising regulator for all media in Ireland.

In relation to public expectations on self-regulation in the online space, the ASAI would contend that there is a clear distinction between the regulation of commercial content and the regulation of harmful and other content, which the Bill also aims to address.
The system of advertising self-regulation has been well established in Ireland, and indeed Europe, for many decades and has been shown to be flexible in its approach to new developments in the advertising eco-system.

While it is accepted that a statutory system can apply sanctions not available to a self-regulatory system, it is not clear on what basis it is suggested that the standards applied by the ASAI are lower than those that might be applied by a statutory regulator.
While there may be, in theory, different wording, and in some cases additional rules, the main aim of both systems is to ensure that advertising does not mislead nor harm, and is prepared with a sense of responsibility to society and to consumers.
In the interests of transparency, please be advised that the ASAI has separately raised issues over The Online Safety & Media Regulation Bill Policy Paper – Regulating Harmful Online Content with the Minister for Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media.

19 The embedded document contains, by way of example, a number of the ASAI adjudications related to influencer marketing communications.

Double click on the image to open the document.

20