• by Karl Greenberg , November 5, 2013

Legal issues around branded content and other forms of native advertising are amorphous, and agreeing on parameters is a bit like trying to build a brick wall with quicksand. Rick Kurnit, president and partner of Frankfurt, Kurnit Klein & Selz, opened the legal panel at OMMA Native with two words: "The wall." He set the tone by mentioning the upcoming FTC workshop in December to examine native advertising and work through the thickets of testimonial disclosures and other guidelines. 

He pointed out that there are a couple of overarching legal issues around where the firewall should be between native ads and editorial: disclosure, and permeability of the editorial/ad membrane. "What happens if your brand has crossed the wall; how far does the brand push media to accommodate them; how does a brand approach the issues," he asked panelists.

Ellie Boragine, advertising and commercial counsel at JetBlue, said it’s easy to pass the buck on that. "There's an internal mindset but also among agencies that this is the publisher's problem," she said. "It's the idea that if publishers allow it and place it we don't have to worry about it." But she added that a rigid legal and technical compliance is less important as a point of reference than "Whether our customers feel there's a disrespect factor."

On the publisher's side, Rebecca Sanchueza, deputy general counsel at Time, Inc., said that even with basic parameters around appearance and placement, not to mention editorial crossover, "very often in execution is where you see a link to something editorial or similarity in font, or adjacent ad/editorial content there's some confusion. I find that there can be good intention but execution is where rubber mets the road from the perspective of a reasonable user." 

Kurnit said the idea of  deception itself depends on material relevance to the consumer. "In terms of the degree to which a brand has any impact at all, there's always defense that it's not deceptive because it's unlikely to influence purchase decision. 

Boragine said JetBlue is creating its own editorial content channels on its own travel microsite, but with bloggers involved there’s disclosure issues there, as well. JetBlue involves bloggers, inviting them to experience new amenities or new routes and destinations. When it comes to legalese, she said the company tries to keep disclosures — when needed — in everyday language if it's to clarify the position of a blog (versus JetBlue native ads in major media.) “And if you can incorporate that into a story in a way people get, you don't need 'magic' legal language."