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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Robertson
Sarah Butler
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions