Advertisers are legally liable for content that AI creates and publishes. Are you ready? 

As a business owner and employer, the word ‘liability’ is very heavy. We know that the buck stops with us, even if it’s not written down. 

From implied terms to vicarious liability, you’d be very much mistaken to think that just because you didn’t personally ‘do it’ or have it written in a contract – you’re still very much on the hook as far as liability is concerned. 

This is one of the reasons that AI in advertising concerns me and has introduced a level of paranoia in the last 24 months that’s not set to diminish anytime soon. 

In the last 12 months, those working in advertising will be aware of new introductions on the Google ads platform which are solely for the purposes of AI generated ad campaigns – AI Max for Search, AI generated assets for Pmax to name a couple. And this isn’t unique to Google – they’re all at it, including Meta. 

Advertisers are legally responsible for content that AI generates

The main issue outside of suboptimal performance and wasted spend is the content that the search engines produce and publish – without consent. Content which can and will draw the attention of the ASA and the liability of this lies firmly at the advertiser’s door. 

The first point to take onboard is that advertisers are responsible for AI content. Here’s Google’s cleverly legally phased position which plonks this at advertisers door: 

 

“You are solely responsible for all ad content, including content that is automatically generated, modified, selected or adapted by Google systems” 

 

This includes: 

Automatically created assets 

AI generated headlines / descriptions

Dynamic combinations

Asset variations and optimisation 

In legal terms – you’ve chosen to use the AI framework as a tool and Google is not the author. 

This positioning is designed to keep Google outside of publisher liability which exposes them to risk. 

In the UK the courts are only interested in whether the consumer would have been misled and if the answer is yes, then the advertiser is liable. 

Anyone working account which cover the following sectors should be feeling very uncomfortable 

Financial services

Energy & utilities

Grants / Housing

Health & wellbeing

Legal and claims based 

What can you do as an advertiser or ad agency? 

 

Until the regulators step in, it’s fairly long winded. As Google’s current position is supported in law as a content distributor and not an author, their AI content is free to create and publish what it likes. 

However, (and this is GREAT news for those who like manual campaigns) the question of Google’s innocence in the whole publisher vs author debate is being… debated! 

Lawmakers are considering Google’s position in the light of AI and whether it holds any liability for the content that AI creates. 

Currently under debate: 

The EU – AI Act + Digital Services Act

The UK – Post brexit AI Liability consultations

The US – FTC unfair practices guidance

(more on the UK’s AI Liability Consultations soon) 

Here are the scenarios in which Google will face liability (potentially) 

AI generated content is non-optional

Advertisers cannot meaningfully pre-approve outputs

The system materially changes claims made by advertisers 

If we cannot opt out of AI generated content – then it has to be argued that Google is the co-author. 

There can be no doubt that Google and others will try to shift liability with some clever wording or terms. But advertisers and agencies need to be smarter and work harder. 

In practical terms, advertisers need to have a set framework of authorised copy and claims and ad agencies need to police content and copy as standard. 

At Be Found Be Chosen we are committed to scanning copy and AI content for its creation at account level – but it’s getting harder and Google are equally committed to sneaking in additional AI generated assets at account level, campaign level &  asset group level. 

 

The bottom line is – if you’re not concerned about AI content, you should be. If you don’t have a mitigation plan in place, get one. 

Speak to us about having a full AI audit today