As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of "native advertising" – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers' well-documented ad avoidance. Although the native advertising model debuted on digital-native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew "native" had arrived for good when the venerable New York Times not only introduced its online "Paid Post," but incorporated sponsored content in its print editions, and even hired an in-house branded content production team to conceive and execute the embedded ads on behalf of advertisers. Because such integrated advertising must inevitably flirt with disguise and deception, administrative and scholarly attention has principally addressed it through a consumer protection lens. Yet this conventional frame ignores the more insidious hazards of this transformational development. Apart from confusing at least some consumers, the turn to native ads will profoundly hobble the press in the exercise of its democratic role, and will invite recalibration of whatever privileged constitutional status it still has. These effects are particularly troubling in an age when increases in global state power and new forms of censorship call for a powerful, independent, and fearless press. Still, because native advertising is here to stay, admittedly imperfect responses must be explored. In that spirit, this Article proposes three solutions: (1) "voice priming": designing sponsorship disclosure at the per-ad level in close alignment with results of rigorous empirical research regarding consumers' cognitive and perceptual responses to labeling; (2)"surveillance-enabling": adopting additional, corporate-level disclosure designed to highlight advertiser identity and spending in order to aid public oversight over the editorial independence of news organizations; and (3) "collective standard setting": addressing structural impediments to collective action by news organizations to promote collective strategies for effective self-regulation in the deployment of native advertising. These solutions seek to promote a diverse Fourth Estate that sees itself as charged with engaging in accountability journalism. Although it is a closer question with respect to some kinds of native advertising, sponsorship disclosure requirements are unlikely to run afoul of the First Amendment. If they are deemed to do so, however, what might be seen as a free speech "victory" would be Pyrrhic indeed-ironically serving as the nail in the coffin of the press's distinct status. Recognizing this reality should create significant self-regulatory incentives.
Lili Levi, A "Faustian Pact"? Native Advertising and the Future of the Press, 57 Ariz. L. Rev. 647 (2015).