New age advertorials: Best practices in native advertising

3 minute read
12 September 2016

It has happened to you. You clicked on the cutest video of tiny 4-year-olds jumping across 2-feet fences on horribly naughty ponies, and all of a sudden you went from content to what is barely discernible as an ad for a weight reduction product or more likely a very expensive new saddle.

It is estimated by IAB Canada that the Native Advertising spend globally will reach $21 billion in 2018 (Interactive Advertising Bureau of Canada, 2016).

Native Advertising which is defined as "a type of disguised advertising technique that matches the form and function of the platform upon which it appears" (Wikipedia, 2016) is not illegal per se. What is clear from both the FTC and the Competition Bureau guidance is that the harm to be avoided is misleading consumers into believing that content is editorial content rather than paid advertising.

In the decades past, we used to call these "advertorials" which were typically paid ads written in the style of a magazine feature to suggest that the editors just appeared to discover this great new mascara and had to share it with their readers. Magazines, once outed by consumer advocates, began marking these paid pieces as "advertorials" or "advertisements".

In the new form of native advertising, with the efficacy of the digital/social platform, the transition from interesting content to paid advertising is virtually seamless and the challenge as an advertiser or a platform is properly disclosing the material connection or the fact that the content is paid advertising. From a business perspective, of course, neither the advertiser nor the platform want to be too direct in disclosing the connection or the media will not be as effective.

The resulting "suggested post", "sponsored" and "protected" tags did little to clear up the inherent deception in the platform.

Under the current regime, best practices dictate that depending on the input the advertiser has into the content of the native advertising, different disclosures may be required.

If the advertiser merely suggests content and products and hands it over to the platform to review, the term "advertorial" may be appropriate. If, however, the advertiser has approval/editorial rights in the content created or even created the content themselves, the post should be disclosed as "advertisement" or "paid advertisement" or "sponsored by X brand".

For helpful guidance on the different types of native advertising and disclosures, visit Interactive Advertising Bureau of Canada and the Federal Trade Commission.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.