One of the key trends in advertising in recent years has been the rapid expansion of ‘native advertising’. Native advertising seeks to engage the consumer by tailoring advertising content to the user, and making it consistent with the aesthetic and functional context of the editorial content with which it is presented. In this regard it is much like traditional advertorial, though the richness of the data that can be gathered online allows a far greater level of tailoring. However, a risk of tailoring content in this manner is that it may blur the boundary between editorial and advertising (which is arguably the intention). This can result in a breach of the CAP Codes and the Consumer Protection from Unfair Trading Regulations.
Last week, the ASA upheld a complaint against the content marketing company Outbrain. Outbrain works with web site owners to place paid-for links at the foot of web pages. These had the same look and feel as the web page but were marked ‘more from the web’ or ‘we recommend’. The complaint, which related to an advertisement on the web site of the Independent newspaper, accused Outbrain of failing to ensure that the links it provided were clearly identifiable as advertising.
This ASA adjudication is a clear reminder that all advertising, including native advertising, must be clearly identifiable as such. The ASA also stressed that although on this occasion the complaint was upheld against the advertising service provider, similar complaints could potentially be upheld against the advertiser and the media owner.
The law and the CAP Codes
The Consumer Protection from Unfair Trading Regulations 2008 provide that it will always be an unfair commercial practice to:
‘[Use] editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).’
This provision is carried forward into the CAP Codes: rule 2.1 of the non-broadcast advertising code states that ‘Marketing communications must be obviously identifiable as such’. Rule 3.1 provides generally that ‘Marketing communications must not materially mislead or be likely to do so’.
The complaint
Outbrain’s image and text advert appeared at the bottom of an article on the Independent’s web site alongside other ads under the heading ‘You may also like these’. A link below the ad took consumers to a third party’s web site. Outbrain also used ‘Recommended by’ next to its own logo in the bottom corner when the user clicked through to the full advert. Next to the heading on the Independent‘s web site was a linked Outbrain logo, which took users to a pop up headed ‘What are these links?’ and told the user that the links were to third-party content. The complainant challenged whether the ad was identifiable as such.
The ASA decided:
- the text ‘You may also like these’ and ‘Recommended by’ as well as the information provided in the pop up and in the third party link was not sufficient to ensure that it was obvious to consumers that the ad was a marketing communication;
- consumers might not realise that the Outbrain logo included a link to additional information about the ads;
- consumers might not notice the ‘Recommended by’ text.
The ASA concluded that the ad was not obviously identifiable as a marketing communication, and was therefore in breach of rule 2.1. For this reason it was misleading, and breached rule 3.1.
Outbrain is now reported to be in the process of changing its labelling. Labels such as ‘you may also like these’ will change to ‘Promoted Stories’ and the words ‘Promoted’ or ‘Sponsored’ will appear on or near each Outbrain paid link across its portfolio or partner web sites. In addition, the ‘recommended by’ next to Outbrain’s logo on the ads themselves will be changed to spell out the whole company name, underlined.
CAP Advice
The Committee of Advertising Practice (CAP) has published advice relating to the Outbrain ruling on its web site and has branded this a ‘test case’. Significantly, the ASA points out that although in the Outbrain complaint the ASA took the advertiser to be Outbrain itself, in other scenarios the publisher or the brand owner may be considered advertisers for the purposes of applying the CAP Code rules.
CAP makes it clear that the context driven approach of native advertising is not objectionable in itself, but ‘marketers must be cautious that, in seeking to make ads more inviting, they do not camouflage advertisements.’ An ad must not appear to be editorial content when it is not.
Comment
The CAP Code provides that advertising must not only be identifiable as such, but obviously identifiable. It is not sufficient that an ad is recognisable as such only after careful consideration, or after the consumer has clicked on the link. This obligation conflicts with the objective of native advertising, which is to break down the barriers between editorial and advertising to provide the consumer with engaging and attractive content. In their response to the ASA, Outbrain even argued that their service was not advertising in the traditional sense. However, with this adjudication, the ASA has signalled that native advertising must comply with the CAP Codes, and that this kind of blurring is unacceptable.
Content marketing companies and the brand owners instructing them should therefore ensure that steps are taken to make the advertising clearly identifiable. This may include identifying ads as ‘Promoted’ or ‘Sponsored’ or making advertisements obviously distinctive from editorial by means of presentational elements such as the font, layout and colour of ads. Particular care should be taken where the audience is a vulnerable group, such as children, who may be less able to distinguish advertising from editorial content.
Susan Barty is a partner within the Commercial Department at CMS Cameron McKenna LLP.
Stuart Helmer is a Senior Associate in the Technology team at CMS Cameron McKenna.
