Australia: Advertising content must be "clearly distinguishable" under a new provision of the AANA Code of Ethics

Last Updated: 16 February 2017
Article by Ian Robertson and Sarah Butler
Most Read Contributor in Australia, September 2018

The Australian Association of National Advertisers (AANA) has announced that the following new clause 2.7 will be inserted into the AANA Code of Ethics (AANA Codes) with effect from 1 March 2017:

2.7 Advertising or Marketing Communication must be clearly distinguishable as such to the relevant audience.

The new provision is intended to encourage transparency in advertising and marketing, and to ensure that the typical consumer is able to distinguish between marketing communication and editorial. A consumer will be able to lodge a complaint with the Advertising Standards Board (ASB) if they consider that advertising or marketing material is not clearly distinguishable to the relevant audience.

In its Best Practice Guideline (Guideline) released to assist advertisers to comply with the new provision ( available here), the AANA states that:

Context driven advertising and marketing is permitted, but marketers should be cognizant that, in seeking to make their advertising and marketing communication more engaging, they do not camouflage the fact that it is advertising. Advertising or marketing communication should not be disguised as, for example, independent market research, user-generated content, private blogs or independent reviews.

Application of clause 2.7 of the AANA Codes

There are a range of advertising and marketing communications that will be caught by the new provision, including advertising and marketing communications which use "social influencers" through social media such as Facebook, Instagram, Twitter and Snapchat.

Clause 2.7 of the AANA Codes will only apply to advertising and marketing communications where the following two key criteria are met:

  • the marketer has a reasonable degree of control over the material; and
  • the material draws the attention of the public in a manner calculated to promote a product or service.

The Guidelines also provide that contextually-targeted branded content, integrated content and native advertising (i.e. material in an online publication which resembles the publication's editorial content but is paid for by an advertiser and intended to promote the advertiser's product) are included in the definition of "advertising and marketing" under the AANA Codes.

Who is the "relevant audience"?

Advertising or marketing communication must be clearly distinguishable to the "relevant audience". The AANA states in the Guideline that in determining the relevant audience or readership of an advertisement or marketing communication the ASB may consider:

  • the content of the advertising or marketing material;
  • material that may be provided by the advertiser to the ASB in response to a consumer complaint, including classification material, audience measurement data, and the media placement plan;
  • data from audience measurement suppliers such as OzTam; and
  • in the case of social media, the opt-in nature of the medium and the age-gating which may apply to some social media sites.

Tips for ensuring that your advertisement is "clearly distinguishable" under the new provision

In summary, the key to ensuring that advertising or marketing content is clearly distinguishable is to adopt a policy of disclosure where any content is commercial in nature. Although it will be necessary to assess content on a case by case basis, the following steps are recommended to ensure compliance with clause 2.7 of the AANA Codes:

  • Do not attempt to disguise marketing or advertising material as, for instance, user-generated content, private blog posts or independent reviews.
  • When using native advertising techniques, adhere to the best practice principles set out in the "Native Advertising Principles" ( available here) developed by the AANA and the Interactive Advertising Bureau (IAB) in 2015, which include the requirement to:
    • prominently display brand logos around or within the native content to clearly display the brand's association to the content;
    • use different design formatting by the publishers and/or provider of native advertising format, such as fonts or shading to mark it as being different to accompanying editorial content; and
    • ensure that publishers use and/or providers of native content used a prominently visible label that demonstrates in clear language hat a commercial arrangement is in place.
  • Take care to ensure that an article which is advertorial does not to appear to consumers to represent the independent view of the writer. This may be achieved by including a line at the end of the article which explains that the post is sponsored.
  • Where advertising or marketing features elements associated with a news bulletin on the radio or television, such as 'breaking news' style music or use of interviews or news reporting language, then the relevant audience should quickly be able to recognise the message as advertising. This may be achieved, for instance, through repetition of the brand name, a disclaimer associated with the relevant product or service, clearly scripted and pre-recorded content, or clearly comical or fictitious reporter names.

Where a social media influencer is engaged to promote products or services through social media, the following steps can be undertaken to ensure that advertising or marketing content is clearly distinguishable as such to the relevant audience:

  • Clearly identify sponsored or paid social media posts by including the word "sponsored" or "paid" at the end of a post to make it clear that the material is advertising or marketing material. The IAB recommends this in its "Social Advertising Best Practice Guidelines" ( available here).
  • Ensure that any disclosures about a commercial relationship are prominent. In order to make a disclosure in a social media post prominent, we recommend using hashtags such as "#ad", "#sponsored" or "#paid". The AANA Guidelines state that if there are a series of connected tweets in a short space of time, the final tweet should include the hashtag.
  • Consider having an agreement with the influencer requiring them to provide appropriate disclosures in their social media posts.

The AANA Guidelines provide a range of scenarios and guidance to assist in considering whether advertising and marketing material is clearly distinguishable to the relevant audience.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Ian Robertson
Sarah Butler
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