ASA Ruling on Bonne Terre Ltd t/a Sky Bingo – marketer responsible for non-compliant advertorial, despite not authorising the ad

What does an advertorial need to display in order to be clearly identified as a marketing communication for the purposes of the CAP Code, and who bears responsibility for a breach?

The complaint 

An advertorial displayed on DailyTopLinks.com promoting Sky Bingo Casino featured the text  “EXCLUSIVE REPORT: ABERDEEN CITY MCDONALD’S EMPLOYEE WINS £296,121 ON  HER LUNCH BREAK …”. Slightly below this was smaller text that stated “Published on 24-  01-2017 By Christine Perry, Daily News UK …”. The advertorial then featured the text “Amelia  Smith showed up for her morning shift at McDonald’s like any other day, but what happened  on her break would change her life forever …”. The advertorial stated how she had won the  quoted amount of money and detailed the hardships she had previously endured. 

At the bottom of the advertorial was text that stated “DailyTopLinks.com is a general interest  website containing articles about a wide variety of subjects. Many of these articles are what is  [sic] commonly referred to as Advertorials. THIS IS AN ADVERTISEMENT AND NOT AN  ACTUAL NEWS ARTICLE, BLOG, OR CONSUMER PROTECTION UPDATE. The term  “advertorial” is a combination of “advertisement” and “editorial” written in an editorial format as  an independent news story, when in fact the advertisement may promote a particular product  or interest. Advertorials take factual information and report it in an editorial format to allow the  author, often a company marketing its products, to enhance or explain certain elements to  maintain the reader’s interest. A familiar example is an airline’s in-flight magazines that  provide an [sic] editorial reports about travel destinations to which the airline flies”. 

The complainant challenged whether the advertorial was clearly identified as a marketing  communication. 

The response 

Sky Bingo stated in response that the advertorial was posted by a third-party affiliate (Moojah  Ltd) in breach of its contractual obligations to Sky Bingo, which had no involvement in creating  or authorising the ad’s content.  On being notified of the complaint, Sky Bingo contacted the affiliate. It informed the affiliate  that the ad was unacceptable, and would not be tolerated. As a result the ad was taken down  on the same day Sky Bingo received notice of the complaint. 

Sky Bingo stated that it was dedicated to ensuring that its marketing was compliant, and had a  robust marketing approval process together with on-going training for all employees involved  in marketing. Affiliates were contractually required to comply with the advertising codes and  have all ads approved by Sky Bingo in advance. On this occasion the advertorial had not  been submitted to Sky Bingo for clearance. If it had been, it would have been rejected.  Furthermore, Sky Bingo monitored their affiliates’ activities using third-party software and also  sent them regular communications regarding compliance. 

The decision 

The ASA upheld the complaint. 

The ASA acknowledged that Sky Bingo had procedures in requiring affiliates to submit their  ads for approval before publication, and that those procedures had not been followed in this  case. Consequently, Sky Bingo had not authorised the ad. However, CAP Code rule 1.8  provides that primary responsibility for observing the Code falls on marketers. Others involved  in preparing or publishing marketing communications, such as agencies, publishers and other  service suppliers, also accept an obligation to abide by the Code.

The ASA noted that the advertorial was presented like a news article with a headline at the top  along with smaller size text underneath it stating, “Published on 24-01-2017 By Christine  Perry, Daily News UK …”. This, together with the story about the woman named “Amelia  Smith” winning £296,121 from Sky Bingo was sufficient to initially imply that the advertorial  was an editorial piece which had been written by an independent third party. 

The top of the advertorial did not feature a header identifying it as an ad. The small print  explaining that the advertorial was “AN ADVERTISEMENT AND NOT AN ACTUAL NEWS  ARTICLE …” was located at the very bottom of the page. If that notice had been prominently  presented, the ASA considered that it would have immediately clarified to consumers from the  outset that they were reading an ad rather than editorial content.

As a result, the ASA considered that consumers were likely to understand that the advertorial  was editorial content. It therefore concluded that the ad had not been clearly identified as a  marketing communication, in breach of CAP Code (Edition 12) rules, 1.8 (Compliance), 2.1  and 2.4 (Recognition of marketing communications). 

Why is this important? 

This ruling underscores two key messages. Firstly, it’s marketers who bear primary  responsibility for observing the Code. The ASA accepted that the affiliate had published this  ad without authorisation, and that immediate corrective action had been taken, but this was  not enough for Sky Bingo to avoid an adverse ruling. 

Secondly, marketers and advertisers must clearly mark advertorials as marketing  communications from the outset. It will not be sufficient to hide explanations in the small print  at the bottom of articles – notices should be prominently displayed in the header of the  content. 

Any practical tips? 

It may be tempting to avoid clear signposts that an ad is marketing, particularly when it takes  the form of an advertorial, post on social media, or similar. Advertisers may think that the ad  will have a greater impact if it appears to be produced by a third party. The message from the  ASA is clear – do not be tempted! In finding new ways to engage with consumers, marketers  must not be misleading. 

The ASA will not take kindly to marketers attempting to dodge blame for non-compliant  adverts. Marketers should keep their advertising affiliates on a (very) short leash if they want  to avoid negative publicity for non-compliance with the Code. However, as this decision  shows, even that is sometimes not enough.