An ad appeared at the bottom of an article on a newspaper's website alongside other ads, each of which contained an image and text, under the heading "You may also like these". A link below the ad was labelled "(Keep Your Email Private!)". The ad linked to a web page run by a third-party advertiser.
The complainant challenged whether the ad was identifiable as such.
Outbrain said they provided content recommendations, most often found at the bottom of an article on a publisher's page. Their technology meant they were able to understand how and when people consumed all forms of content and could therefore recommend relevant material based on interests, which could be via paid-for links to third-party sites or links to other content on a publisher's own site. They did not own the websites on which the content they recommended appeared and each publisher could dictate the layout and 'look and feel' of content such as that placed by Outbrain. They said although the content complained about had been paid for by a third party, it was not advertising in the traditional sense and their recommendations were better described as "promoted content" or "promoted stories".
They said their approach was in line with industry standard practices and they used the text "You may also like these" and "Recommended by", which appeared next to their logo, to identify that the paid-for ads linked to third-party sites. When that logo was clicked on, users were taken to a pop up headed "What are these links?", which gave information about Outbrain's service and also included the text "Links to 3rd party content were paid for by an Outbrain customer". The logo also changed colour when hovered over, to make clear that it was an interactive link. They believed the average internet user would be aware that links similar to the one they provided were clickable and that they were often used to provide additional information. However, they said they were willing to cooperate in making changes.
The ASA understood Outbrain were responsible for the overall presentation of the contextually targeted branded content and its labelling, and acknowledged they were willing to make changes. We also acknowledged the ad appeared under the text "You may also like these" and that, when viewed in its entirety, the 'panel' of content featured the text "Recommended by", which appeared next to a logo. However, we considered consumers would not necessarily realise that the various different 'recommendations' included formed part of the same 'panel' and that they might not notice the "Recommended by" text, which appeared in the bottom corner. We also considered consumers might not realise that the logo included a link to additional information.
Nevertheless, we noted that marketing communications must be obviously identifiable as such and considered the text "You may also like these" and "Recommended by", as well as the information provided in the pop up and in the link below the ad, was not sufficient to ensure it was obvious to consumers that the ad was a marketing communication. Because the ad was not obviously identifiable as marketing communication, we concluded that it was misleading.
The ad breached CAP Code (Edition 12) rules
Marketing communications must be obviously identifiable as such.
Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context.
(Recognition of marketing communications) and
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising).
The ad must not appear again in its current form. We told Outbrain to ensure future advertising placed by them was obviously identifiable as such.