By: Kamilo Antolović, K&K Promotion and legal expert for advertising

Lately there have been more questions and doubts, of both a legal and ethical nature, concerning “native advertising” as one of the many forms of advertising, especially in the digital sphere, which in recent years has gained huge popularity and a high growth in investment.

Definition of the phenomenon called native advertising

Native advertising, we can say, existed even before (so called advertorials for example), and was created in the search for more efficient performance of communications investments and as part of the evolution of the media and communication itself.
It can be concluded that Native is actually a kind of contextual advertising, which means that the advertising content is presented in the context of the medium or of the content in the medium, and is in itself interesting for the user, who gladly consumes and shares it.
Native shapes content and messages that are inherently interesting to the user, who willingly consumes it, much more than “classic” advertising content, so the persuasiveness (efficiency) of such communication is greater.
Native, in its essence and content, in many ways “hides” its advertising nature (i.e. the aggressiveness, assertiveness, visibility etc.) and wants to be perceived as a curiosity (news) to the consumer, or rather as the program content of the medium.
Investment in this form of advertising – due to the new attributions of such advertising and its greater efficiency – is increasing in all groups of media.
Nevertheless, it basically represents the paid publication of messages (from message development to the media that publishes these messages). It is therefore advertising in the classic definition of this phenomenon, as a form of market and social communication.

Legal and ethical aspects of native advertising

If we consider that Native advertising, in defining the concept and its key attributions, is fully equated with every other form of marketing communications as the “paid, systematic and well-thought expansion of messages in order to influence the recipient”, in legal and ethical terms it clearly can’t be separated from any other forms of advertising. From the legal / regulatory (law) and ethical / self-regulatory (ethics) perspective we can conclude the following:

The law (e.g. the Media Law or the Law on Electronic Media) stipulates that: “An ad must be clearly marked as such and clearly separated from other program content… it shall not give an impression that it is the program content of the media.”
It is clear that this provision is prohibitive and in its key intention (separation of ads from program content) it is at odds with the essence of Native advertising (similar display of the advertising and program content); from which it can be concluded that the average media consumer must be able to unambiguously and clearly distinguish between media content and native advertising content. The difference must be such that the average media consumer can clearly see it even at first glance.
The Code (i.e. the code of the HURA association) says that “marketing communications should be recognizable, regardless of the form of the message or the type of media … with the clearly visible identity of the advertiser.” Undoubtedly, even the self-regulatory norms of the Code define a standard whose fulfilment would mean that the average media consumer can’t be misled.
Special labelling, visible and clear separation and indication of the advertiser should that it is perceived as an advertisement (native or otherwise), and not as content of the media as such. This labelling (ad, sponsored … or any other term), visibility (through style and tone, typography, etc.), and in particular the designation of an advertiser on a key part of the message (for example, at the beginning of the text) are a guarantee that the native advertising will be perceived as a paid form of marketing communication and not as program content of the medium.

Regulatory and self-regulatory practice framework – examples

As much as native advertising is a new and customized tool in creating demand, a tool of greater efficiency and a new opportunity for the media (banners are dead, long live native?), it creates new legal and ethical dilemmas. On the one hand it threatens free, objective and independent journalism as such, while on the other hand it can create new implications for consumers in the way that it hides the true nature of its communication, primarily due to a sort of “mimicry” of advertising and corruption of covert advertising.

Without assessing examples from our practice, I give you an example of native advertising in the Republic of Croatia, and readers can decide for themselves whether they can clearly and at first glance recognize that this is paid content, and is therefore (native) advertising, rather than standard content in the media.

Examples HT and Adris.