Labelling advertising: what the law requires

The rule underlying advertising disclosure across European law is a single principle: a commercial communication must be recognisable as such. Concealing the commercial purpose is prohibited.

Everything else, the specific wording, the placement, the sector rules, follows from applying that principle.

When a label is needed

Not always. Obvious advertising in an obvious advertising position needs no label, because nobody could mistake it.

A label is required where the format could be mistaken for editorial, personal opinion or independent information.

Placement

The commercial character must be apparent at first contact, not after reading.

That means the label goes above or immediately with the content, visible without scrolling, in a size comparable to the surrounding text. A disclosure at the end, in the third paragraph, or behind a "more" link has been held insufficient repeatedly.

Wording

Courts and regulators across several jurisdictions have consistently held that the plain word for advertising is sufficient and that softer alternatives are not.

Held sufficient: the plain word for advertising or advertisement, in the audience's language.

Repeatedly held insufficient: sponsored, in cooperation with, supported by, industry abbreviations, and any English term used with a non-English-speaking audience.

Your own channels

The obligation applies to material you publish yourself. A blog post on your own site promoting a partner who paid for it requires disclosure, even though the site is obviously yours.

The reasoning is that the reader can see the site is yours and cannot see that the content was paid for by a third party.

Who is liable

Generally both the advertiser and the publisher. An advertiser cannot escape liability by pointing to an influencer's failure to disclose, and several enforcement actions have proceeded against the brand rather than the individual.

Practical consequence: put the disclosure obligation in the contract, specify the exact wording and position, and check compliance rather than assuming it.

The practical rule

Where there is doubt, label it. The cost of an unnecessary label is negligible. The cost of a missing one is an enforcement action, an injunction and the associated costs, and increasingly a public story about the concealment.