In November 2024, the ASA hosted the event ‘Future-proof Advertising: How will AI change advertising and regulation?’, and spoke about its commitment to using technology to deliver more effective, responsive regulation; a key part of the ASA’s 2024-2028 Strategy.

As well as using AI to support effective regulation, the ASA is a proactive regulator, constantly trying to understand emerging issues and monitor compliance with the rules.  Previous news articles have clarified how the existing rules are likely to apply to the use of generative AI and deepfakes.  This guidance makes clear that some of the advertising-related issues which AI may present are already dealt with by the Codes, including misleading images and claims, misleading endorsements and testimonials, and harmful or offensive imagery.  Recent rulings have demonstrated that harmful, offensive, and socially irresponsible AI-generated images will breach the Code, just as any other type of image would.  The ASA also has a Scam Ad Alert System, which it operates in partnership with major online ad and social media platforms to help tackle scam ads online, some of which involve the use of AI.

AI, as both a useful tool and something which needs to be understood and, for particular use-scenarios, safeguarded against, is not only on the ASA’s agenda, but is high on the public agenda, too.  Most recently, the UK Government announced its AI Opportunities Action Plan, with the intention to make Britain a world leader in the AI sector, and embrace the opportunities of AI, whilst trailblazing AI safety and governance via the AI Safety Institute, with a proportionate, flexible regulatory approach.

CAP is aware that developments in public policy around AI have the potential to affect the way advertising which uses AI is regulated. CAP is closely monitoring policy developments both within the UK, and internationally, to ensure that it can respond as necessary.

For example, CAP will stay alert to how the use of generative AI, and the public policy response to it, might impact the ASA’s regulation of ads which feature recognisable individuals, such as celebrities, and consider the effect on the consumer (such as issues of misleadingness, responsibility, and offence).  This is particularly important in the context of fast technological developments, with tools becoming more accessible and easier to use.  This increasingly allows for convincingly realistic images and voice replicas to be created, quickly and easily, and often with negative impacts on both the individual featured, and the viewer. So far, the use of generative AI has not been considered by the ASA in relation to permission to feature recognisable individuals, but it is likely that the rules in Section 6 of the CAP and BCAP Codes (which include rules about permissions for depicting or referring to living persons in ads) would apply, and it important that CAP tracks relevant developments.

In the USA, for example, the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act protects the voice and visual likeness of individuals, whilst providing carve-outs for specific situations, including, amongst others, documentary and historical uses, uses that are consistent with the public interest in commentary, and criticism, satire or parody.

In September last year, the UK signed The Council of Europe Framework Convention on Artificial Intelligence and human rights, democracy and the rule of law, which includes safeguards around the use of AI, including the protection of human rights, appropriate use of data, respect for privacy and protection against discrimination.  It is not currently clear how the UK will implement the requirements.

CAP is conscious of the complex nature of many of the issues at play, and the potential intersection with multiple legal and regulatory regimes, including privacy law, data protection law, copywrite and intellectual property issues, and more. This is why CAP will continue to proactively monitor how the use and regulation of AI develops to ensure that it stays informed, and, where developments impact advertising, will respond as necessary to continue effective regulation.