The regulation of digital advertising under the DSA: A critical assessment

Abstract

This article critically assesses to what extent the Digital Services Act (DSA) protects consumers in relation to three important developments in digital advertising: (i) the rise of influencer marketing as a new form of native advertising (ii) the personalisation of advertising and (iii) hybrid ads as advertising solutions that find themselves at the intersection of influencer marketing and personalised advertising. We describe and analyse these developments to better understand whether and how they are governed by the DSA. While the DSA specifically left influencer marketing outside of the material scope of its advertising rules, new forms of advertising (i.e. on-platform influencer marketing, which we refer to as hybrid ads) challenge this choice, as we argue they may fall under the DSA's advertising rules, just as personalised advertising. The resulting regulatory choice of differentiating between advertising practices on social media is odd at best, since it does not take into account the characteristics of these practices or the essential role of social media platforms in other forms of advertising than personalised advertising. The paper critically reveals three main pitfalls related to the way in which the DSA tackles consumer protection concerns in relation to the selected digital advertising developments: coherence/fragmentation; little consumer benefits; and limited future-proofing.