Advertising and the Online Safety Act 2023

Online advertising’s increasing opacity and automation have exposed critical limitations in the current regulatory structures, particularly regarding fraudulent content and ad misplacement. This contribution argues that the Online Safety Act 2023 (OSA) marks a partial shift by extending duties to user-to-user (U2U) and search services for addressing fraudulent ads (OSA Part 3, Chapter 5), but the scope of these responsibilities remains unclear. Key definitional ambiguities, particularly around ‘user-generated content’, ‘users’ and ‘services’, threaten to confuse the regime’s enforcement potential in this context and undermine the coherence of these new obligations. Whether advertisers fall within the scope of ‘users’ under the Act critically shapes the application of general safety duties to advertising, raising unresolved questions about the reach of illegal content provisions across different types of services. The Act’s exemption of search services from broader duties on illegal content in paid-for ads further entrenches enforcement asymmetries between regulated services despite equivalent exposure to harm. While the Online Advertising Programme (OAP) was conceived to address systemic regulatory blind spots, its limited focus on content, rather than delivery infrastructure, has stalled meaningful reform. The article concludes that the OSA introduces vital duties but falls short of delivering a comprehensive regulatory framework, leaving some gaps in coverage, enforcement, and oversight of third-party ad delivery systems.