CAP issues guidance on use of AI in ads

The question

When does the use of AI need to be disclosed in ads?

The key takeaway

While there are (currently) no AI-specific rules in the UK requiring the use of AI in ads to be disclosed, CAP has confirmed that existing advertising rules will still apply and could change quickly in order to keep pace with developments in both the technology itself and the approach taken by regulators and legislators across the globe.

The background

The frequency and variety with which AI is used has, of course, increased exponentially in recent years. The UK's regulatory body, the ASA, and its partners – the Committees of Advertising Practice (CAP) and the UK Code of Broadcast Advertising (BCAP) – are alive to these developments, with the ASA itself using AI to review millions of ads each year.

As this use increases, so does the amount of global regulation and legislation implemented with the aim of protecting parties such as users, consumers and data subjects from the potential harms that AI can cause. For instance, the provisions of the EU's AI Act are beginning to take effect, with significant implications for organisations around the world, regardless of where they are located. For more information on the EU AI Act please see the Spring 2025 edition of Snapshots.

Within the advertising space, regulators and trade bodies are wrestling with whether to issue guidance and impose regulations to protect consumers, at the risk of stifling opportunities to reduce costs to advertisers when producing ads. The Incorporated Society of British Advertisers (ISBA) has, for instance, published 12 guiding principles on the use of generative AI in the creation of ads. The ASA, CAP and BCAP have until now stayed relatively quiet on the issue, opting instead to "stay alert" to developments in the use of AI and the public policy response to the same.

The development

CAP has published an update on the approach that it will be taking to the issue of whether the use of AI needs to be disclosed under UK advertising law and regulation. Though current UK advertising law and regulation contains no AI-specific rules whatsoever, CAP has confirmed that existing requirements and guidance, such as the rules in the CAP and BCAP Codes, will continue to apply regardless of how content is generated, including where AI has been used.

In order to ensure compliance with the existing position, CAP has recommended that advertisers ask themselves two key questions:

1. "Is the audience likely to be misled if the use of AI is not disclosed? In other words, what’s the mischief, if any, that the disclosure is mitigating?"

2. "If there is a danger of the audience being misled, is the disclosure clarifying the ad’s message or contradicting it?"

CAP adds that disclosure of AI use alone is very unlikely to mitigate the harm caused by a fundamentally misleading message, reminding advertisers that it is against the CAP and BCAP Code rules to make a misleading claim in an ad. The example of a materially misleading ad in this context given by CAP is an ad containing "an AI generated image showing the effect of a cosmetic product that does not accurately reflect real-world results and [relies] on a disclosure that AI was used to rebut the misleading impression created."

In contrast, CAP gives the example of an advertiser that makes clear that "deepfake content featuring in an ad is only being used for comedic effect or that an influencer is AI-generated", could assist the advertiser in negating what would otherwise be a misleading impression given to consumers.

It is noteworthy that, whilst the CAP article makes specific reference to ISBA's aforementioned 12 guiding principles on the use of generative AI in ads, it doesn't mention the fact that the principle that the use of AI should be "transparent where it features prominently in an ad and is unlikely to be obvious to consumers" could be viewed as a stronger requirement than CAP's two questions above, suggesting that transparency is only required where there is a risk of an ad being misleading.

Why is this important?

The use of AI across all sectors is a rapidly evolving space, however CAP appears to currently be of the opinion that the technology is not, as of yet at least, at odds with the UK's regulatory regime for advertising. CAP did, however, state that they are ready to change their approach if such a response would be "proportionate" in order to make ad regulation work.

Any practical tips?

As the UK's advertising regulators keep a watchful eye on both domestic and international policy developments in the AI space, so too should advertisers – particularly those whose ads reach global audiences. As CAP's guidance notes, the existing rules on advertising continue to apply, albeit the use of AI brings with it more risks of breaching these rules. Advertisers should be mindful of circumstances where the disclosure AI is essential to remain compliant, such as where there is a risk of misleading consumers.