The ICC Marketing Code on AI, User-Generated Content, and Data-Driven Marketing

Authors: Panu Siitonen, Anna Mäkinen, and Martta Salmi

The 11^th edition of the International Chamber of Commerce’s (“ICC”) ICC Advertising and Marketing Communications Code (the “Marketing Code”) was updated in September 2024. It addresses the challenges that the fast-paced changes of technology, data-driven marketing, and artificial intelligence (“AI”) present to the advertising and marketing sectors. The Marketing Code has been expanded to tackle questions regarding the responsible use of the new technologies utilised in advertising while preserving the main notions of legal, decent, honest, and truthful marketing communications in the changing digital environment.

The newest version of the Marketing Code addresses recent social and technological developments, emphasises diversity and the avoidance of stereotypes, encourages businesses not to incite or condone hate speech and disinformation, and addresses the responsibility of influencers and creators. In this blog, we explore the implications of the Marketing Code for companies who utilise innovative technologies in their marketing efforts.

Two overarching themes can be identified in the updated Marketing Code when it comes to the challenges posed by recent social and technological developments: transparency and accountability. The transparency requirement relates to the idea that consumers should have the right to know when they are being commercially influenced, including when such influence is aided by, e.g., AI-based targeting algorithms. The consumer should be made aware of such use of AI in a transparent manner.  The accountability requirement relates to the liability of the entire marketing ecosystem, i.e., that none of the parties involved in the marketing efforts can wash their hands from their responsibility towards consumers. The recurrence of these two themes becomes clearer in the description below.

Updated Views on New Technologies and AI in Marketing

Using AI in marketing provides marketers with the possibility to both analyse data related to marketing more efficiently and create interesting marketing communications. However, marketers using algorithms or AI tools are also responsible for the communication outcomes. This also applies to companies that develop and commercialise AI systems for marketing, and they should also ensure transparency to their clients to the extent feasible. Social media algorithm results are the responsibility of the companies that create them. Utilising AI applications in marketing planning, targeting, media selection, and content creation requires specialised expertise and accuracy.

All participants of the marketing ecosystem, whether a marketer, ad tech company or other subcontractor, or a social media platform, must ensure the transparency and accountability in their AI-driven campaigns. This includes mitigating biases in algorithms and avoiding the use of deceptive practices, such as the manipulation of data or AI-generated content. Where used, AI-generated or AI-altered visuals and other media must not be misleading regarding a product’s characteristics or capabilities. The main issue with the above is where to draw the line? What are, for instance, considered sufficient mitigating steps to limit the forming of biases?

Furthermore, the marketer who purchases advertising space rarely has control – or even full visibility – over the algorithms used in the targeting of the advertisement, yet, based on the accountability of the entire marketing ecosystem, they are as reliable for ensuring the transparency and accountability of the marketing as the party who has created the algorithm. Contractual safeguards are the only way to mitigate these risks.

The AI Act and the Marketing Code

Assessing the use of AI systems and algorithms by a business and its affiliates to avoid biases and misinformation is crucial. Emphasising transparency and accountability in marketing efforts and considering these aspects in agreements across the entire marketing ecosystem is vital. While the EU AI Act does not directly target low-risk marketing activities, marketers should consider the obligations regarding prohibited practices and how the AI Act affects their affiliates. Informing consumers when they are interacting with AI-driven systems is essential. The AI Act's focus on transparency, non-discrimination, and fairness complements the Marketing Code.

Case MEN 49/2024 Otavamedia Oy

A good example of what can go wrong when utilizing AI in marketing was demonstrated in a recent case of the Council of Ethics in Advertising (MEN 49/2024 Otavamedia Oy, statement given on 2 January 2025). The case concerned a magazine intended for schoolchildren that was advertised on Tinder. The Council noted that although the advertisement was intended for the guardians of children, its presentation on the Tinder platform was against good practice. Specifically, the advertisement's text "Entertainment for 7–12-year-olds…" combined with the image of a child and the context of Tinder could give a misleading and inappropriate impression. The advertiser had used a service provided by Google Ads, where AI is utilised both in the creation of the advertisement itself as well as the placement of the advertisement in different channels. This case underscores the importance of carefully selecting advertising platforms and ensuring that advertisements do not appear in inappropriate environments. Advertisers must be aware of how their advertisements can be perceived in different contexts and ensure that they comply with ethical rules and practices. The use of AI and algorithms does not remove the advertiser's responsibility but rather highlights the advertiser’s duty of care.

User-Generated Content or Advertisement?

User-generated content is original content that genuine people and users of products and services create instead of the brand itself. To potential customers and consumers, it can serve as a more authentic source of information than traditional advertising content. Due to the lack of control of the marketer, user-generated content, such as comments related to marketing communications, is the responsibility of the individuals who have created it. However, if this content is found to originate from a marketer or associated third party or is reused in marketing communications, the responsibility shifts back to the marketer.

Marketing communications should be transparent about their true commercial purpose and not misrepresent it. Mixed content, such as news or editorial matter or advertisements in social media, should clearly distinguish the marketing communication element and its commercial nature from content generated by genuine users and third parties, ensuring it is readily recognisable and appropriately labelled.

Enhanced Focus on Data-Driven Marketing

The most recent version of the Marketing Code also introduced new, more detailed provisions on data-driven and interest-based marketing, which include requirements for transparency in data usage and respecting consumer preferences. These guidelines are applicable regardless of whether the content is created through automated means, like AI and algorithms, or by humans. As ever, when involved in data-driven marketing, special care should be taken in compliance with data protection and privacy.

Interest-based advertising involves tracking web viewing behaviour across multiple domains to create interest segments for targeted ads. It includes various forms of tracking, such as cookies, fingerprinting, and cross-device tracking. Companies must provide clear and conspicuous notices about their data collection and use practices, ensuring users can make informed choices and have control on how their data is used. Privacy disclosures should detail how precise location data, such as GPS coordinates, is accessed, used, and shared, and companies must respect consumer choices regarding data collection.

Users should not be misled into thinking that tracking is more restricted than it is or that they have blocked all tracking across apps, browsers, and devices when this is not the case. If the options provided do not encompass all the methods companies use to track consumers, this should be clearly and prominently stated. Businesses must be upfront about their collection of data and how it is used in targeted advertising. This also means that if a company includes factual statements based on data in its marketing, they must ensure that these claims can be substantiated.