By Shaan Katari Libby
An “advertorial” is a blended word—a portmanteau—made by combining “advertisement” and “editorial”. Advertorials are advertisements that look similar to regular editorial articles published in newspapers, magazines, and so on, but created by companies/organisations to market their products or services. Usually, a brand pays the publisher for such an article. Advertorials appear in the media, be it magazines, newspapers or websites and are paid content.
An advertorial is more detailed than a regular advertisement and thus helps consumers understand more about the product. Advertorials are usually written by an ad agency or the client itself. They then purchase the ad space on the website or in a newspaper or a magazine. When an advertorial is printed, it is important that the word “advertisement” is printed in small letters at the top or bottom of an advertorial. Some newspapers or magazines choose to put these advertorials in special sections.
How does one distinguish an advertorial from a regular article? As advertorials are meant to be advertisements, there is bound to be blatantly one-sided “reporting” singing the praises of the subject concerned. Secondly, the wording “Sponsored” or “Advertisement” (or something similar) will appear somewhere on the page. This is where it all breaks down…of late you would be forgiven for thinking that certain states in our country are not lawless and economically depressed at all…but in fact progressive and prosperous! …shining examples to us all!
So, who is responsible for their functioning? The primary body responsible for issuing advertising regulations and enforcing rules on advertising is the Advertisement Standards council of India (ASCI). In addition, the Press Council of India has Norms of Journalistic Conduct (2010). A non-statutory tribunal is set up and it judges advertisements based upon the ASCI Code, which is applicable to advertisements read, heard, or viewed in India even if they originate or are published abroad so long as they are directed to consumers in India.
Once considered more akin to a regulator that recommended alterations or the removal of adverts, the recent judgment of the Delhi High Court in Metro Tyres Ltd vs the Advertising Standards Council of India and MRF 2017 (70) PTC 394 (Del) has had the effect of enhancing its powers. It has been given the power to adjudicate upon matters concerning infringement and passing-off in an advertisement. The case involved the plaintiff complaining that it had been wrongly accused of plagiarism/infringement by MRF (defendant 2) who had complained that the plaintiff’s advertisement blatantly copied MRF’s advertisement for its product REVZ Radial Tyres. The Court held that the suit of the plaintiff was premature and it could not seek to scuttle MRF’s proceedings before ASCI in this manner.
The ASCI Code contains basic guidelines for all advertisements to ensure amongst other things: truthfulness and honesty of representations and claims made by advertisements to safeguard against misleading advertisements. As per the Norms of Journalistic Conduct (Press Council of India) Section 36 on commercial advertisements defines them as information—just as much as social, economic or political information. They are thought to “shape attitude and ways of life at least as much, as other kinds of information and comment”. The norms go on to specify that “Journalistic propriety demands that advertisements must be clearly distinguishable from news content carried in the newspaper.”
This is reiterated in 36 (vi) almost verbatim, while also stipulating that “advertisements should be charged at rates usually chargeable by a newspaper since payment of more than the normal rates would amount to a subsidy to the paper”. Whether or not this is being adhered to is unclear.
The Representation of the People (Amendment) Act, 1996, prohibits any and all advertisements at the cost of the public exchequer regarding achievements of the political party/ruling government. The statute provides for a penalty of imprisonment and/or fine for anyone, including advertisers, who contravenes these provisions. One wonders if said chief ministers are incurring the considerable expense on their own…
In an article in Newslaundry by Tanishka Sodhi, she rightly points out that the problem with some advertorials is that they are disguised as reports and lack readily visible markers, leading the reader to believe they are news reports by journalists. You would have to be a very discerning reader to realise the slight change in font size or style of writing.
India Today uses words such as “Focus” in a corner of the page, and The Indian Express does not seem to use any words to distinguish. These are clearly not in keeping with the Press Council of India’s norms for journalistic conduct, “that advertisements must be clearly distinguishable from news content carried in a newspaper”.
Outlook reported recently that the Editors Guild of India is deeply shocked and seriously concerned at the increasing number of reports detailing the pernicious practice of publishing “paid news” by some newspapers and television channels, especially during recent elections. The Guild, at its Annual General Meeting held on December 22, 2009, has strongly condemned this practice which whittles the foundations of Indian journalism and calls upon all editors in the country to desist from publishing any form of advertisement which masquerade as news.
The Guild has stated that media houses “…must squarely address the charge that some media organisations seem inclined to sell editorial content for revenue.” The media being under attack, journalists needed to be “extraordinarily vigilant and conscious” and adhere to the “highest standards of free and fair journalism”.
In the United Kingdom, general advertising, sales promotions and direct marketing across all media, is regulated by the Advertising Standards Authority (ASA), an independent regulator. Electoral law doesn’t require claims in political campaigns to be truthful or factually accurate, but it is a crime to make or publish a false statement of fact about the personal character or conduct of a candidate.
Following the 1997 general election, the Committee of Advertising Practice decided to exclude political advertising from the ASA’s remit. There were concerns that the impartiality of the ASA could be damaged by rulings for or against political parties.
A 1998 report, “Neill Committee on Standards in Public Life”, considered political advertising as part of a wider investigation into party funding and recommended that political parties seek to adopt a new code of practice. The Electoral Commission, an independent body which regulates party and election funding, consulted on the issue in 2003. In its 2004 report, political advertising—report and recommendations, the Commission prioritised the need to promote and protect the interests of the electorate, but argued that any regulation of political advertising should be voluntary—it should remain outside the remit of the ASA.
All in all, the key components of an ad are as follow:
1. Advertisement features should be designed and presented in a way that makes them stand out from the surrounding content, so that it’s easy for consumers to recognise what is and isn’t advertising.
2. Advertisement features are usually designed to resemble the editorial style of the “publication” in which they appear. However, they still need to be obviously recognisable as marketing communications to comply with rules. The responsibility for compliance with this rule lies with both the “marketer” and the “publisher”.
3. Where the overall presentation doesn’t make sufficiently clear that it’s an advertisement, as opposed to regular editorial content, a label is a straightforward way of indicating this to consumers. The CAP Code specifically refers to “Advertisement Feature” as an appropriate label for “advertorial” content. The labels “Ad”, “Advert”, “Advertising”, “Advertisement”, “Ad Feature” and similar are all very likely to be considered acceptable labels, as long as they are displayed in a noticeable place. Because the term “sponsored” is open to varied interpretation, UK entities are generally advised against using this label to refer to advertising content.
The ASA’s research on labelling influencer marketing found that people struggle to identify when social media posts are ads—but the more noticeable the label, and the more its meaning is understood to refer to advertising, the more consumers are able to tell when an ad is an ad. As a result, at minimum, the ASA expects all advertisement features to include a prominent label upfront that makes it clear that the content is advertising.
As has been made abundantly clear throughout the course of this article, unlike ads where there is mere exaggeration or puffery which is obvious and over the top and can be easily seen through, the deceptive nature of “advertorials” make them a strange and unusual beast. At present, the onus is on the consumers/readers to be alert, cautious and discerning—lest they consume these advertorials and think them to be true.
There is little doubt that the status quo is unsatisfactory, unethical, misleading and flouts all the regulations and norms. To put it bluntly, it is lying in plain sight of the world and with impunity. When such advertorials make their way into publications in India or elsewhere, they need to be clearly labelled for what they are…and the font needs to be a different colour altogether to make it very obvious that this is paid news—concocted to put across a piece of fiction or vision for the future. The lax situation surrounding advertorials needs to change—fast.
—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With inputs from Surendar B