In a new press release regarding hidden advertisement, the Danish Consumer Ombudsman empha-sised that PR bureaus and others assisting companies with their advertising, can become co-liable by complicity if the advertisements do not comply with the rules in the Danish Marketing Practices Act.
The case at hand
In the recent press release, the Consumer Ombudsman emphasised to a PR bureau the rules on hidden advertisement and its responsibility for highlighting any commercial intend.
The PR bureau had assisted companies with their PR activities by writing advertorial press releases about the companies and their products. The PR bureau distributed the press releases to editorial me-dias with the instruction that the press releases were for “free editorial use” and could therefore be used as is. However, as the press releases had a clear commercial purpose (promoting the companies and their products), they were considered de facto advertisements and should consequently be clearly marked as such. By not ensuring the proper indication that “the material constitutes an advertisement”, the PR bureau contributed to violating the ban against hidden advertisements.
According to the Marketing Practices Act section 6, a company must at all times clearly identify the commercial intent of their advertising. The purpose is to ensure that the consumers are aware of the commercial content and thereby evaluate the content based on the commercial context.
Further, paragraph 11 of Annex 1 to the Marketing Practices Act stipulates that it is misleading to use editorial content in the media to promote a product, when a trader or a company has paid for the promotion, without this being evident in the content or in images or sound that can be clearly identified by the consumers.
Advetorials, advertising material that look like journalistic articles, are a commonly used advertising tool. But if the commercial intent is not clearly identifiable, the advertorial breaches the ban against hidden advertisement.
Readers need to know if they are reading an editorial article or text with a commercial intent. In this regard, the Consumer Ombudsman has previously stressed the importance of maintaining the confi-dence in the media. Advertorials, just as any other piece of advertisement, must therefore clearly state that the article or press release is in fact an advertisement.
An earlier press release from the Consumer Ombudsman shows that the mere use of the word “adver-torial” is not sufficient to mark advertising material. The commercial purpose can, instead, be indicated by using disclaimers such as “sponsored content” or “advertisement”. Further, companies (whether the advertiser or the marketing bureau creating and distributing the advertisement) must ensure that the
While not a new departure, a key-takeaway and important reminder from the recent press release from the Consumer Ombudsman is, however, that advertising agencies also have a responsibility to ensure the proper marking of the content as advertising, as they can be held co-liable for tviolations of the Danish Marketing Practices Act.
When assisting companies with their marketing, PR bureaus or others, should conduct its own exami-nation of the created advertisement as well as the platform on where it is published to assess whether it complies with the Danish Marketing Practices Act, including presenting the material as an advertise-ment in a sufficiently clear manner. As a main rule, the less the advertisement looks like such, the more clearly the commercial intent must be stated.