By David Jenkin

Rules of the game

The universally accepted golden rule of advertising is to not deceive the consumer. As marketers and publishers employ innovative methods, this often means playing close to the line of deception, sometimes dangerously close. Recognising this tension, and in anticipation of legal challenges, the US Federal Trade Commission drafted guidelines specifically for native advertising. Numerous real-world examples are given to illustrate when to disclose native advertising and how to make disclosures clear and prominent. Precise wording is used to provide clarity on the proximity and placement of disclosures, their prominence, and clarity of meaning.

South Africa might not have such explicit parameters, but it would be a misconception to believe that laws pertaining to native advertising don’t exist. In fact, there is some very clearly-defined legislation that governs native advertising practices, as Interactive Advertising Bureau (IAB) South Africa’s head of regulatory affairs, Andrew Allison, points out. Those perceived grey areas, he says, aren’t really so grey.

“I think it’s probably grey to the extent that the concept is still reasonably topical and new in South Africa and I think people are still getting acquainted with it,” he says, “But it’s actually not that grey in terms of the existing regulation. Although, in the two pieces I’m going to refer to, it doesn’t specifically call it native advertising.”

South Africa’s Consumer Protection Act is the first piece of legislation to which he refers, specifically Parts E and F, broadly Section 29 through to Section 47. Part E is about the right to fair and responsible marketing while Part F refers to fair and honest dealing. Reading from Section 29, he says, “So a producer, importer, distributor, retailer or service provider – basically anyone – must not market goods or services in a manner which is reasonably likely to imply false or misleading representation – and particularly there ‘misleading’ would be in the context of native.” He then refers to Section 41, pertaining to false, misleading or deceptive representations.

“So this is where a question of intent would come in … if you can reasonably say that through the way someone has structured the advertisement that they’re trying to deceive somebody, then they would be in breach of the Consumer Protection Act and the consumer would have a right to refer it to the National Consumer Commission. So broadly, the Consumer Protection Act can be relied upon whenever there is a misleading or dishonest marketing.”

Clearly distinguishable

The next relevant document Allison mentions is the Advertising Standards Authority (ASASA) Advertising Code of Practice, of which Section 12 of General Principals pertains to identification of advertisements. It states: “Advertisements should be clearly distinguishable as such whatever their form and whatever the medium used. When an advertisement appears in a medium which contains news, editorial or programme matter it should be so designed, produced and presented that it will be readily recognised as an advertisement.”

“The basic principles,” Allison continues, “is that where you are publishing or communicating with native advertising, it is important that it’s clear to the consumer that the content is advertising.”

Native advertising, he says, “is still one of these very new catch-phrases in the advertising, content marketing space, and people think that because it’s new it’s not really dealt with, but it is actually – it’s not actually that new, it’s something that has existed since before the internet, and it has been dealt with before.”

In March, IAB South Africa published its own document on native advertising best practice guidelines which is also intended to serve as a “launchpad” for further discussion. The document states that as the market evolves quickly, its validity is likely to last a year whereupon it will be updated.

Overstepping the line

As an example of how native advertising can go wrong, The Atlantic, a US magazine, met with a storm of fierce controversy in 2013 after publishing a sponsored web post by the Church of Scientology, prompting them to issue new guidelines for native advertising. Lucia Moses writes for AdWeek, “The issue … was that The Atlantic violated the spirit of native advertising by giving a platform to a controversial institution that didn’t jibe with its intellectual tradition.” Going forward, the publication pledged to make the native advertising disclosure and disclaimer far more prominent and to first have such ads reviewed by a team and the publication’s president himself.

Moses adds, “The more prominent labelling likely will go too far for some advertisers but not enough for traditionalists. That’s where native advertising runs a fine line. You don’t want to fool the reader, but on the other hand, if it’s not mimicking editorial, it’s missing the point.”

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