Advertising Practices and Requirements under DSA
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Overview
Legal Framework
The advertising-specific obligations under the Digital Services Act (DSA) are primarily governed by Articles 39 and 40. These articles establish distinct transparency and accountability regimes for online platforms and for very large online platforms (VLOPs)/very large online search engines (VLOSEs), respectively. The legal requirements stem from the particular risks advertising systems pose due to their scale and sophisticated targeting capabilities, as recognized in Recital 95.
Article 39 DSA mandates that all online platforms ensure recipients can identify, in a clear and unambiguous manner, that the information presented to them is an advertisement. They must also disclose, on whose behalf the advertisement is presented, and meaningful information about the main parameters used to determine the recipient to whom the advertisement is displayed. Article 40 DSA imposes enhanced obligations on VLOPs and VLOSEs, requiring them to maintain and provide public access to a searchable repository containing detailed information about all advertisements served on their interface. This repository must include the content of the ad, who paid for it, the period it was displayed, and the targeting criteria and parameters used.
Practical Application
The authoritative commentary emphasizes that these provisions are designed to mitigate systemic risks from opaque advertising systems by enabling public and regulatory scrutiny. For VLOPs/VLOSEs, the repository under Article 40 is not a passive archive; it must be designed to facilitate meaningful analysis of advertising practices, including the identification of advertisers and the logic behind ad targeting. This supports the overarching DSA goals of protecting recipients against misleading or manipulative advertising and ensuring accountability. While Article 39 applies broadly to platforms, its requirement to provide "meaningful information" about targeting parameters necessitates a contextual assessment based on the complexity of the platform's advertising system and the data used.
Key Considerations
- Platforms must implement technical and design solutions to ensure advertisements are labeled conspicuously and that disclosure information about the advertiser and targeting is easily accessible to the user, as required by Article 39.
- VLOPs and VLOSEs must build and maintain a publicly accessible, searchable, and machine-readable ad repository compliant with Article 40's detailed specifications, ensuring data is retained for one year after the ad's last display.
- Organizations should review their advertising interfaces and backend data logging to ensure they can generate and present the required disclosures in real-time (for users) and in comprehensive detail (for the public repository, if applicable).