Strengthening Advertising Self-Regulation to Ensure Meaningful Protection for Children in the Digital Environment

Abstract

Nowadays, children grow up in a commercialised environment, where they are confronted with advertising and marketing on a daily basis. From a very young age, they already display a level of brand consciousness, even starting from the age of 2 years old. Children are an attractive target group for advertisers, as they not only represent the primary market (i.e. they can purchase products or services with their weekly allowance), but also the secondary market (i.e. influence on their parents’ purchasing behaviour) and even the so-called future market (i.e. themselves as adults with full commercial decision-making capacities). Furthermore, due to technological developments and advanced computational capacities, children are being tracked online and their personal data is used for advertising purposes. More specifically, commercial communications are more and more targeted at specific individuals, including children, who have been profiled as potentially interested in or receptive to the products or services that are promoted. Digital advertising formats (e.g. advergames, targeted social media ads, vlogging advertising) and the persuasive tactics behind them present significant obstacles for children to recognise and critically process the commercial message. In this regard, it can be questioned whether the current EU regulatory framework for commercial communiciation – which is fragmented in legislation and self- and co-regulation – achieves at ensuring meaningful protection for children. The advertising industry has traditionally actively participated in the regulatory process at national, European and international level. This has lead to a variety of self- and co-regulatory initiatives, some more general , some more specific across different sectors (e.g. food , alcohol , cosmetics, toys), and formats. Moreover, self- and co-regulation has been promoted by the European Commission as an important part of the regulatory process of protecting children online since the very beginning. The EU legal framework for commercial communication also specifically encourages the Member States to consider or adopt such mechanisms to regulate different forms and aspects of commercial communication aimed at minors. Nevertheless, scholars agree that there are a number of drawbacks to self-regulation, such as a lack of effective enforcement, a low level of transparency and it has been questioned whether it should be a tool to safeguard human rights. Furthermore, even though co-regulation partly addresses these drawbacks, confusion or uncertainty may occur for instance when the structure and procedures are not carefully laid out from the start or when the role of all actors is not clearly described. The aim of this article is to overcome some of these drawbacks, by identifying best practices for the structuring of alternative regulatory instruments (“ARIs”) - such as self- and co-regulation - in the area of commercial communication. To achieve this, a comparative study of a selection of existing ARIs at the national level is conducted, to explore their strenghts and shortcomings. The aim of the comparative analysis is to distinguish those procedural (i.e. monitoring, enforcement and remedial measures) and organisational (i.e. the attribution of regulatory power, organisational structures) elements that could improve the quality and effectiveness of ARIs to ensure meaningful protection for children in the context of digital advertising.