AI in Advertising: Balancing Innovation and Integrity

In the realm of advertising, artificial intelligence (AI) is no longer just a futuristic concept—it's a current reality. Brands across industries are putting out entirely AI-generated advertisements and campaigns. Mango has led the charge within the fashion industry and has launched an entire campaign using AI-generated models for its teen line, signalling a new era where AI leads the charge in creative campaign development. As Mango's own press release highlights, this move "marks a before and after in the history of advertising," setting a precedent that could potentially reshape the modelling industry as we know it. Critics have raised concerns about the potential for false advertising and the ethical implications of replacing real models with AI. The allure of AI in advertising is clear. It offers new options for efficiency, the ability to personalize content to customers on a massive scale, and the potential to unlock new creative horizons. Brands can now design models to suit any number of scenarios, styles, or backgrounds, opening up a world of creative possibilities that can be adapted instantaneously to market trends and feedback. This technology empowers advertisers to create highly targeted and dynamic visual campaigns that effectively engage consumers.

Adherence to advertising regulations

However, this brave new world of AI-driven advertising is not without its legal and ethical minefields. One of the most pressing concerns is the impact of AI-generated models on body image. Current advertising codes by the Committees of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) set standards to prevent harmful body image representations. AI, with its capacity to create hyper-realistic and potentially idealized images, could inadvertently contravene these standards, perpetuating unrealistic beauty ideals and exacerbating body image issues among consumers. Although CAP and BCAP recently concluded that no new advertising regulations relating to body image are necessary at this time (as discussed in further detail in an article by my colleague Imogen Brown, here), any companies using AI-generated models should still be mindful of current regulations.

Moreover, there's a risk that AI could create content that strays into the territory of being "too good to be true". The Advertising Standards Authority (ASA) mandates that advertisements must not mislead by inaccuracy, ambiguity, exaggeration, omission, or otherwise. AI-generated content that misrepresents products could fall foul of these regulations, leading to legal repercussions and a loss of consumer trust.

Data Protection Considerations

The generation of AI models also presents data protection concerns. If the imagery used to create these models is derived from Mango's historic database of real models, these images could be considered personal data (as highlighted in an article by my colleague Janine Regan (Head of Data Protection), here). Consequently, there must be a lawful basis for processing this personal data under data protection law. Relying on 'legitimate interests' would require Mango to provide clear privacy information, demonstrate that their processing is absolutely necessary and does not infringe on the rights and freedoms of the individuals concerned, and allow for a right to object. It remains to be seen whether Mango has issued an appropriate privacy notice or if these stringent requirements have been fulfilled.

Potential intellectual property implications

The intellectual property implications of AI are equally significant. AI models are often trained on vast amounts of data, some of which may include copyrighted material. This raises complex questions about the ownership of the resulting content, whether the original creators are due compensation and the possibility of AI-generated content inadvertently infringing upon the IP rights of original creators. Moreover, if someone's image and likeness are being used without their consent to train AI, this could mirror the issues at the heart of the recent SAG-AFTRA strikes in the US acting and gaming industries. These strikes highlighted the importance of consent and compensation for the use of one's image and likeness, which is a consideration that could similarly impact the use of AI in advertising. In the absence of a definitive legal framework, the deployment of generative AI in advertising campaigns is venturing into uncharted copyright territory.

Looking forward

In conclusion, the integration of AI into advertising campaigns offers a glimpse into the future of marketing. Yet, it also presents a host of legal and ethical challenges that must be carefully managed. The advertising world must work in concert with legal professionals to establish responsible AI practices that respect both consumer rights and the rule of law. Only then can we ensure that AI serves to enhance, rather than undermine, the art of advertising.