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Law Column: Editorials v Advertorials – the regulatory red flags

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Advertorials: The risks

While advertorials are rarely subject to the same scrutiny as editorial content, it is not unknown for editorial complaints to follow from advertorials, including libel. Equally serious yet often forgotten, is the regulatory regime governing all advertising, the UK Code of Advertising (the CAP Code) overseen by the Advertising Standards Authority.

The regulations

An advertorial is “an advertisement feature, announcement or promotion, the content of which is controlled by the marketer, not the publisher, that is disseminated in exchange for a payment or other reciprocal arrangement”.

The Cap Code stipulates that “Marketers and publishers must make clear that advertorials are marketing communications, for example by heading them “advertisement feature””.

Where an advert is found to be in breach of the Cap Code, the ASA will hold the publisher, marketer and agency equally responsible and will name all parties in any published ruling. While the ASA lacks the same sanctions against print publishers as it holds for broadcasters (who are required by their broadcast licenses to enforce ASA rulings), upheld complaints can still generate negative publicity and impact on reader confidence.

Recognising an advertorial

As money may not always change hands, the key differentiator is “control”. ave you, as the publisher, retained editorial control? Or does the supplier retain (or expect) copy approval?

The ASA gives the example of an expenses paid holiday offered to a journalist by a travel company in the hope of a favourable review. Where there is no agreement on what the journalist will write, this will generally not be an advertisement. If the copy is subject to the company’s approval, then it will be an advertorial and will need to be flagged to the reader as such.

In another scenario, an advertiser might pay for an advertisement and separately provide the paper with copy for use as the basis of an article. Here, technically, the payment is for the advert, so the question is again one of control. If the paper feels free to develop the additional content according to its own editorial agenda, the resulting copy will remain outside the scope of the Cap Code. If the company retains copy approval or if the paper feels it cannot amend the copy, it will be an advertorial.

If it is an advertisement, then other provisions of the Cap Code kick in, requiring the advertisement to be legal, decent, honest and truthful and not materially mislead or be likely to do so.

Again, the publisher can come under fire if an advert is found to be in breach of these wider principles. In March this year the Guardian came under scrutiny when an advertorial for Jaguar Land Rover Ltd was held to have encouraged unsafe driving practices.

Labelling

There are of course alternatives to the “advertisement feature” label suggested by the Cap Code. However the ASA has warned that publishers should be wary of terms such as “sponsorship” and “in association with”. This was specifically addressed in a 2015 ruling concerning an advertorial for Michelin Tyres which appeared on www.telegraph.co.uk, where the ASA ruled that terms such as “sponsored” and “in association with” did not make the commercial nature of the content sufficiently clear. In another ruling, “Thanks to [brand] for making this possible” was also held to be insufficient.

For social media purposes “#ad” may be sufficient, provided it appears prominently enough.

Practical steps

So when finalising content from a marketer, consider the following questions:

1. Has the newspaper received payment or another benefit for the content?

2. Does the content supplier expect editorial control?

If the answer is yes to either of these questions, take steps to ensure the article is clearly identifiable to the reader as an advertorial.

3 comments

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  • October 25, 2017 at 1:50 pm
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    In an age where the commercial bods have all the clout and will take all and any as money they can get they’d hands on and where an ‘ editor’ ( I use the term loosely here) goes along with whatever he or she is told to do, I wish them good luck with that lot!

    You’ve only to look back to the general election and it’s desperate clamour for political party wraps disguised as front news pages to see when money is waved it’ll be a case of publish and be damned.

    These rules have always been there and when there were true editors in place they were adhered to , now its all about grabbing any ad revenues going and let someone else worry about it later

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  • October 25, 2017 at 4:51 pm
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    These rules are all very well and good only if they are strictly adhered to and action taken against any editors or content chiefs who turn a blind eye just to , as SSJ has mentioned, grab the money on offer.
    The few editors and top floor johnnies who attempted to justify running poorly disguised election party wraps during the recent general election as genuine news complete with their papers masthead giving it credence should be held personally accountable in any case where they break the rules, have them officially sign off the piece so one person is held accountable ,this may then make them think twice before compromising whatever editorial credibility is left should any slip through under the blind eyes of those responsible.
    There are also the comical ‘restaurant reviews’ where someone ( often a two) will write gushing praise of a free meal under the auspices of a genuine editorial review, the rules are clear but whenever do we see them enforced to give a warning to those who prefer to ignore them?

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  • October 25, 2017 at 5:17 pm
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    The best way to handle restaurant reviews is to never accept a freebie (and make sure that local PR bods know that) and to carry a footnote stating that your writer turned up unannounced and paid for their meal.

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