DIGITAL ADVERTISING COMMUNICATION CODE V5 (EFFECTIVE 1 JANUARY 2022)

December 2021

Preamble

Digital advertising and marketing communications must comply with rules based on the principles of the International Chamber of Commerce (ICC)  [1]

The goal of this Code is to create a trusted electronic environment that will be fully reliable for consumers and help them appreciate the new possibilities offered by digital media.

The Code’s scope

All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services (as defined in the 30^th September 1986 law on Freedom of Communication) [2] .

This includes advertising communications in any format, including those on advertisers’ websites.

These types of advertising and marketing communications are covered by the law, by all ARPP Codes and by professional rules issued by ARPP’s members and organisations ARPP is associated with.

The purpose of the provisions gathered here is to specify the common and specific rules for all digital advertising communication (because of its interactive nature, for example).

1. Identification

1/1. Identification of Advertising

Advertising must be clearly identifiable as such, regardless of the form in which it is presented.

This identification may be made by any clearly perceptible means enabling the public to see the advertising nature of the message unequivocally from the outset.

Two cases must be distinguished :

1. a) First case: where the advertising nature of the message is obvious, either through the use of an advertising format customary in the industry or through the content of the message. In such cases, there is no need for additional identification.
2. b) cases where the advertising nature of the message is not clear:

b1 – In such cases, it is recommended that an explicit indication be included to identify the advertisement as such. When the message is broadcast in the middle of news or editorial articles, it should be presented in such a way that its advertising character is instantly apparent. This indication should be legible or audible and intelligible.

b2. – When the form of the advertisement is, by its nature, incompatible with instantaneous identification of the advertising character, such identification will be carried out in accordance with the requirements prescribed within the annex of this Code.

Advertising presentations that are likely to confuse the public as to the nature of the message received should be avoided (e.g. by imitating the graphics of non-advertising messages from software installed on a computer).

1/2. Identification of Advertiser

The identity of any advertiser addressing digital advertising or marketing communication must be easily identifiable. This identification must be clearly perceptible and easily accessible to the public.

Identification may be made by the advertiser’s brand(s) or any other distinctive sign unambiguously linked to the advertiser.

In any event, an advertising message shall not mislead the consumer about the identity and the quality of the advertiser.

This provision does not apply to communications whose sole purpose is to draw attention to subsequent commercial communications (see “teaser” factsheet).

2. Compliance with fair, truthful, and honest advertising

All digital advertising communication must comply with the rules of the law and be fair, honest and truthful.

All digital advertising communication must be designed and distributed with a proper sense of social responsibility and must comply with the principles of fair competition, as generally accepted in commercial relations.

No advertising message should be of such a nature as to impair the public’s confidence in advertising.

In this respect:

• Digital advertising should not mislead the consumer about the actual offer and/or the company behind the offer, nor should it exploit the feeling of fear.
• Conspiratorial advertising based on a supposed desire on the part of the State, a professional body or the media to hide a reality must be avoided (e.g. messages such as “the solution that the doctors are trying to hide”, “the investment that the State is hiding from you…”).
• It is forbidden to represent or refer to a person without his or her prior authorisation, including by means of video infox (deepfake), whether in the private or public sphere, in particular in order to give credence to a statement or advertising speech.
• The conditions to which offers promoted in digital advertising communication are subject must be clearly specified and easily accessible.

Consequently, the following rules apply to legal, corrective and informative notes and overlays:

• These notes must be immediately visible or directly accessible;
• They must be legible or audible and intelligible, without prejudice to the mandatory provisions applicable to certain sectors;
• They must be easily identifiable and not immersed under other information.

The general rules of the ARPP’s Code on Notes and Overlays and Advertising Prices should be taken into account.

It is recommended not to advertise about techniques allowing the substitution of ads by other ads.

3. Compliance with proper social practices

All of the ARPP’s Code apply to digital advertising communications, including the following rules, which are expressly recalled:

Protection of children and adolescents

The ease of access to information, the interactivity of the media used by digital communication and their widespread use by children and adolescents should lead issuers, platforms, all other intermediaries and broadcasters of advertising to be particularly vigilant in their regard.

In order to foster public trust in advertising, it is recommended to use targeting information (use of information such as age or date of birth, etc.) and the context of delivery to limit the exposure of advertising content that may be harmful to children and adolescents to an adult audience.

The ARPP’s Children’s Code is fully applicable.

Image and respect of the person

Digital advertising communication must comply with the requirements of decency and respect for the dignity of the human person.

 The ARPP’s Portrayal and Respect of the Human beings Code is fully applicable.

Sustainable development

Digital advertising communication must integrate this dimension from its conception and respect the rules of the ARPP’s Sustainable Development’s Code.

Food behaviors

Digital advertising communication must respect the principles of food hygiene set out in the ARPP’s Food Behaviors Code.

4. User Generated-Content

In general, when a content created by a user is reposted on behalf of a brand (e.g.: reposting of a user’s content by a brand, on its social media accounts and thus endorsing it), the principles of this code must be respected.

5. Comfort of use

Digital advertising must respect the comfort of use of the public on digital media, in particular by paying attention to the characteristics of advertising messages such as their weight, size, use of sound and duration of exposure.

The advertising format should not be overlaying or overlapping (impeding access to editorial content or features). Autoplay videos (automatic playback without positive user action) should not have audio enabled by default (e.g., for video creations triggered within a standard display banner on a web page, known as in-banner video display).

 

In addition to the present general provisions, any professional concerned with the production and/or broadcasting of digital commercial communications may refer, if necessary, to the following practical sheets associated with this code. These are intended to specify the concrete and specific rules applicable to the various formats or techniques.

First version, December 2010.

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Digital Advertising Communication Code Practical sheets

In addition to the cross-cutting rules displayed in the Code, professionals will be able to refer to this grid, in order to adapt to some specific formats or techniques. Provisions contained in this grid are meant to be read in addition to the general provisions.

Moreover it is necessary while using these techniques to implement all legal requirements concerning the protection of personal data.

1. Application

Definition:

Application software intended to be installed on a device (e.g. mobile apps, video games, utility apps).

1. ADVERTISING IN APPLICATIONS AND USER COMFORT

Advertising inserted in applications must respect their user-friendliness, and in particular ensure that it does not hinder access to their functionalities and controls (e.g. sound, duration, closing option).

For prestitial or interstitial formats, the close option must be present as soon as the ad appears and be easily identifiable.

1. ADVERTISING OF APPLICATIONS

Respect for fair, truthful and honest advertising.

Where an advertisement claims that an application is free of charge, this must relate to the full functionality of the application.

Otherwise, if the application requires a financial outlay at some point, this information should appear in the advertisement.

2. Digital Audio

1. A) SCOPE OF APPLICATION

The term “digital audio” refers to digital audio content accessible via any online public communication service. This includes podcasts, audio streaming platforms, connected speakers, audio books and live audio.

Digital audio marketing refers to all operations intended to monetise audio content through the involvement of a brand.

1. B) IDENTIFICATION OF THE COMMERCIAL RELATIONSHIP

Commercial communication must be identified as such.

1. Advertising

When the advertising nature is obvious (traditional spots inserted at the beginning of the stream, in the middle or at the end of the pre-roll, mid-roll, post-roll, etc.), it is not necessary to provide additional identification elements apart from the means usually used by the profession to distinguish them from editorial content (sound comma, jingle, etc.).

Where the commercial nature is not clearly apparent, an explicit and instantaneous indication in the audio that identifies it as such must be added.

2. Sponsorship

When independent editorial content is produced, and the brand provides financial or material support, the identification of the commercial relationship shall be mentioned in the audio, e.g. “With the support of x…”, “It is x who is sponsoring…”, “This episode was made possible thanks to…“.

1. C) Listening comfort

Commercial audio communication must respect the audience’s listening comfort by paying attention to the characteristics of advertising messages, such as their loudness.

3. Influencer’s communications and brands

Definition:

An influencer (blogger, vlogger, creator, talent, etc.) is a person who creates content, expresses a point of view or gives advice, in a specific field and according to a style or form that belongs to her/him and that her/his audience easily identifies as her/his.

An influencer can intervene in an editorial context or in collaboration with a brand for the publication of content (product placement, participation in the production of content, publication of advertising content, etc.).

1. A) QUALIFICATION ET APPLICATIONS
2. The influencer acts in collaboration with a brand

The existence of a commercial collaboration between an influencer and an advertiser for the publication of content must in all cases be disclosed to the consumer by the influencer.

2. Some collaborations can be qualified as advertising

This advertising character is established when the following criteria are cumulatively met:

• When the content is produced in the context of reciprocal commitments: the influencer’s contribution is the subject of payment or any other counterpart such as, for example, the delivery of products or services to the influencer;
• When the advertiser or its representatives validate the content before publication;
• When the content of the influencer’s contribution is intended to promote the product or service (promotional speech, verbal or visual presentation with a promotional goal…).

Consequence: When the advertising nature of the influencer’s contribution is established, all ARPP’s Code are also intended to be applied by all stakeholders (brands, their representatives, influencers, etc.).

1. B) IDENTIFICATION

In order to disclose the advertising nature of this kind of content – unless it is obvious – it is recommended to add an explicit indication identifying the advertising as such, in order for the advertising nature to appear immediately.

The identification can be made by any means (in the discourse, in the text accompanying the content, or with a note or super in the video …) as long as the information is given to the public no matter the way to access to the content.

4. Brand Content

Definition

Brand content refers to brand content with an editorial appearance [3]  produced directly by the brand or commissioned by a third party (an agency, media, etc.).

The content may be produced by the brand itself or by third-party media that may or may not have participated in its creation.

1. A) TRANSPARENCY

The commercial nature of such content must be clear. Identification can be made by means of the brand or its distinctive signs.

Where there is a risk of confusion with purely editorial content, an explicit indication must be added (e.g. “partner content“, “content created by…”).

1. B) COMPLIANCE WITH ARPP’S CODE

When the brand validates the content before broadcasting and the speech is focused on the promotion of a product, a service, a brand or the image of the advertiser, the ARPP’ Code are intended to be applied.

For any co-creation operation with an individual content creator, please refer to the “Influencer’s communications and brands” practical sheet.

5. E-mails / SMS / MMS

1. A) IDENTIFICATION OF THE ADVERTISING CHARACTER

Any advertising communication by e-mail must be clearly identifiable as such.

In the case of e-mails, this identification must be possible upon receipt by the recipient, without the recipient having to open the e-mail.

For e-mails, a distinction is made between two cases:

• If the advertising nature of the message is obvious from the outset (e.g. name of the advertiser in the subject line of the e-mail): it is not necessary to include any additional identification elements;
• Cases where the advertising nature of the message is not immediately obvious: it is then recommended that an explicit indication be added to the subject line of the e-mail or to the sender’s name so that the advertisement can be immediately identified as such.

For SMS or MMS, this identification must be possible from the beginning of the message. This identification may be achieved by any means (e.g. the advertiser’s name at the beginning of the SMS).

This identification must make it possible to avoid any confusion with an e-mail/SMS/MMS relating to private correspondence in the strict sense.

1. B) RESPECT FOR FAIR, TRUTHFUL AND HONEST ADVERTISING

The terms and conditions of offers promoted in e-mail messages should be clearly specified and easily accessible.

Consequently, legal notes and overlays must be accessible directly by any means, in particular:

• On a mobile website, for a clickable mobile message (sent in the context of a direct marketing campaign).
• Within a distinct SMS or MMS from the one conveying the advertising message (in particular by using the concatenation technique).

The conditions must be legible or audible, and intelligible, without any prejudice of mandatory provisions applicable to specific sectors.

6. In-game Advertising

Definition:

This is advertising embedded within video games to promote a brand or its products and services.

1. A) IDENTIFICATION OF THE ADVERTISING NATURE OF THE MESSAGE

If the message appears in a place that advertising would normally appear in real life, its commercial nature is considered obvious. Therefore, there is no need for further identification elements.

If the commercial nature isn’t obvious, it is recommended to add an explicit indication of the commercial nature of the message.

1. B) PROTECTION OF CHILDREN AND ADOLESCENTS

Advertising in video games aimed primarily at children and adolescents must not in any way be detrimental to them.

To this end, if the video game has been classified according to age, it is recommended to refer to it.

1. C) COMFORT OF USE

The advertising inserted in the video games should in no case hinder their playability, in particular by hindering access to the game’s functionalities or controls, or by reducing the visibility of the elements that make it up.

 

7. Sponsored links

Definition:

The sponsored link (or commercial link) is an advertising link corresponding to a keyword purchase.

It is generally placed in a separate, identified space on the right or at the top of the results sorted by the search engines, following a request from the Internet user.

It can also be placed within a page of a search engine partner site, and in this case be related to the editorial context. This is known as a sponsored contextual link.

IDENTIFICATION OF THE ADVERTISING CHARACTER

The commercial nature of the sponsored links must be clearly identifiable as such from the outset. An explicit and unequivocal demarcation must be made between sponsored links and non-commercial links and/or editorial content.

In the case of contextual links (inserted in editorial content), this identification can be done by mouse-over, in order not to interfere with the reading of the text.

8. Native advertising

Definition:

Native advertising is a family of multifaceted advertising formats that adopt – or come as close as possible to – the design and ergonomics of the site on which they are located and adapt to the user’s experience.

IDENTIFICATION OF THE ADVERTISING CHARACTER

It must be possible to identify advertising as such, without ambiguity, in a clear and immediate manner.

It is recommended that the sponsored nature of a content be highlighted by means of an explicit indication such as “advertising“, “sponsored by“, “in partnership with“…

This indication must be legible or audible and intelligible so that the advertising character is immediately perceptible.

 

9. Behavioural advertising (interest-based advertising) and behavioural retargeting

The following ethical rules apply independently of the legal and regulatory texts applicable to behavioural advertising (see Appendix “Main national and European texts governing digital advertising“). They are likely to change in the near future following the adoption of professional rules at European level

Definitions:

This form of targeted advertising consists in deducing the supposed interests of Internet users from their browsing, in order to be able to display specifically adapted advertisements, supposedly of greater interest to them than other advertisements.

The implementation of this type of advertising depends, on the one hand, on the technologies used and the actors who implement them, and on the other hand, on the availability or not of a “cookie” from a computer or any other means or technique allowing the delivery of an advertising message based on the user’s interests and on the ability or not to share the information with third parties.

Retargeting (or behavioural retargeting) is a targeting technique that consists of sending an advertising message to profiles that have visited the advertiser’s site at least once.

1. A) IDENTIFICATION OF THE BEHAVIOURAL NATURE OF DIGITAL ADVERTISING COMMUNICATION

The behavioural nature of a digital advertising communication must be identifiable as such.

In this respect, the use of a specific visible symbol, distinguishable from the content of the message and perfectly legible, can inform the public about the behavioural nature of a digital advertising communication.

It is also recommended that the consumer should be able to access to a dedicated and specific area by simply clicking on the above-mentioned symbol, to find out about the specific features inherent in this type of advertising (nature of the information collected, methods of use for behavioural targeting purposes, etc.).

This dedicated area should also provide the public with clear information on the different options for refusing or accepting the display of behavioural advertising, including the modalities:

• to accept, either occasionally or permanently, the setting of browser cookies (browser settings),
• deleting browsing cookies,
• to oppose the display of any behavioural advertising by behavioural advertising providers.

1. B) PROTECTION OF CHILDREN AND ADOLESCENTS

Professionals shall refrain from creating specific categories of advertising targeting the interests of children up to the age of 13.

10.Teasing

Definition:

Teasing is an advertising technique consisting of an initial phase in the form of an enigma designed to hold the public’s attention (called a “teaser”) and a revelation phase.

1. A) IDENTIFICATION OF THE ADVERTISING CHARACTER OF THE MESSAGE AND OF THE ADVERTISER

This identification will take place at the level of the advertising campaign, considered as a whole.

The organisation of the campaign must take account of this need for identification (e.g. disclosure within a reasonable period of time; disclosure on the advertiser’s website, etc.).

In the event of recourse to a viral technique with a view to ensuring the propagation of the content constituted by the teaser, the identification of the advertising nature of the message and of the advertiser shall be carried out in accordance with the rules set out below for the propagation of the viral campaign.

1. B) PROTECTION OF CHILDREN AND ADOLESCENTS

If the teaser is based on a viral technique, it is recommended that there is a feature to report content that may be harmful to children and young people.

In any case, if the viral content is likely to be harmful to children and young people, it is recommended that this be explicitly stated.

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Annex (as of 1^st December 2021)

Main national and European regulations governing digital advertising

National Regulations:

Legislative provisions

• Law n° 2004-575 of 21 June 2004 for confidence in the digital economy (LCEN) (art 7 – art 16 -art 20)
• Law n° 2020-1266 of 19 October 2020 aimed at regulating the commercial exploitation of the image of children under the age of sixteen on online platforms.

Regulatory provisions

• Decree n° 2010-1379 of 12 November 2010 on on-demand audiovisual media services / AMENDED

Independent administrative authorities

• CNIL “Cookies and other tracers” guidelines

European Regulations

Directives

• DIRECTIVE 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)
• DIRECTIVE 2005/29/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive)
• DIRECTIVE (EU) 2018/1808 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), taking into account changing market realities

Regulations

• Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).