Regulating harmful cross-border advertising: can it be done?

This post was written by Jonna-Susan Mathiessen

How do governments prevent their citizens from being exposed to harmful online advertising which originates outside of their jurisdiction? Such advertising is referred to as cross-border advertising. Advertisers have taken advantage of a digitised, interconnected world to reach broad audiences (including children) across national borders. Alcohol advertising is no exception – alcohol advertising on social media has seen significant growth and is undertaking using increasingly sophisticated techniques. Studies demonstrate that alcohol advertising increases alcohol consumption and consequently alcohol-related harms. For governments, cross-border advertising poses not only public health issues, but complex jurisdictional issues relating to regulation and enforcement.

Recently, Sydney Health Law, Sydney Law School’s health law centre, hosted three student interns to research and develop a feasible legislative strategy for controlling cross-border advertising in Pacific Island Countries and Territories. The project was intended to assist Public Health Division of the Pacific Community, including in its work to develop the Pacific Legislative Framework. This blog post is a summary of the project findings.

The legal concept of jurisdiction provides States with legal grounds for applying and enforcing their laws. Jurisdiction generally arises from territoriality, which allows States to legally apply and enforce their laws over actions commenced and completed within their territory.

States are typically reluctant to enforce their laws outside of their territory: enforcement may be impossible in these circumstances, and States are reluctant to intervene in another State’s affairs or infringe on its sovereignty. This creates difficulty for States wishing to limit or prevent alcohol advertising, as advertisers are often from another jurisdiction.

States have adopted different regulatory approaches to the challenge of cross-border advertising, with varying success. These approaches include no regulation (as is the case for most Pacific Island Nations), self-regulation, partial regulation or a complete ban. Social media platforms, through their advertising policies, typically mirror a State’s national regulator regime (meaning it is vital that a State has a clear, articulated position in regard to alcohol advertising).

Australia, for example, has a self-regulatory model that involves a purpose-built, non-profit entity (ABAC) that hears complaints lodged by the public alleging breaches of a voluntary code of conduct. ABAC  is overseen by a management committee with representatives from the alcohol and advertising industries (and one government appointee). Unsurprisingly, the code does not extend to regulating cross-border advertising, since it only applies to “marketing communications in Australia generated by or within the reasonable control of [a producer, distributor or retailer of alcoholic beverages]“.

It follows that the Code does not regulate Australian marketers who engage in cross-border advertising, nor would it regulate alcohol advertisers from other jurisdictions who target Australian social media users. Such gaps leave Australians vulnerable to exposure to harmful alcohol advertising.

Other States (mostly those based on or influenced by the Islamic religion) have banned alcohol advertising altogether. A similar approach applies under the Framework Convention on Tobacco Control (FCTC).  The FCTC compels parties to undertake a “comprehensive ban” of all advertising, promotion, and sponsorship, including both incoming and outgoing cross-border advertising (Art. 13). Where this is not possible, States must impose the most stringent advertising restrictions possible.

The FCTC acknowledges that States have the “sovereign right” to apply the same restrictions and sanctions to incoming cross-border advertising that they apply domestically. States are responsible for implementing their FCTC obligations, but knowledge is shared by the WHO and FCTC Secretariat and among States. Although many States have imposed a complete ban on tobacco advertising, including cross-border advertising, enforcement remains a challenge and it is unclear whether States have been able to successful prosecute advertisers arising from outside of their jurisdiction.

The project findings point to the shortcomings of the self-regulatory and partial regulatory models, indicating the most effective form of regulation is a comprehensive ban. Restricting a single advertising medium can cause advertising to proliferate in other forms. Additionally, narrow regulation is typically less dynamic and less responsive to changes in the digital landscape. Importantly, a complete ban prevents advertisers, wherever they are located, from advertising in that State’s jurisdiction. Practically, social media companies do this through geoblocking content in that State posted by advertisers outside the State.

However, a complete ban is not necessarily a feasible option and accordingly a partial regulatory model with extensive safeguards is the next best option. These safeguards may include establishing a competent regulatory and enforcement governmental or inter-governmental body to implement, monitor and enforce regulations. The regulatory body should be constituted by lawyers, government officials and academics who have a background in ethics, law and health and are not conflicted by economic considerations (as seen in Australia). The body should encourage education and understanding of the regulations amongst advertisers, social media platforms and the public.

Another option available to States to alleviate the issue of jurisdiction is enforcing national laws against surrogate entities which benefit from the advertising, such as internet providers and alcohol importers. This is particularly useful for small States from which little or no local advertising content is produced and where most advertising arises trans-nationally.

Drawing on the lessons of the FCTC, international collaboration strengthens the performance of a regulatory regime and therefore international collaboration on cross-border alcohol advertising is vital. The more States that demonstrate a willingness to regulate such advertising, the more likely success is. Additionally, international information-sharing can provide States with valuable regulatory guidance.

The project findings demonstrate that effective regulation can be achieved: governments do have options available to them to regulate cross-border advertising effectively. However, governments must first be committed to reducing or preventing levels of cross-border advertising, adopt a regulatory strategy that is feasible and consistent with that country’s constitutional requirements, and apply the resources that are needed to ensure effective enforcement.