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Online Af=liate Marketing Advice online 09 Mar 2017|
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Note: This advice is given by the CAP Executive about non-broadcast advertising. It doesnot constitute legal advice. It does not bind CAP, CAP advisory panels or the AdvertisingStandards Authority.
AfDliate marketing is a type of performance-based marketing where an afDliate isrewarded by a business for each new customer attracted by their marketing efforts,usually with a pre-agreed percentage of each sale. AfDliates typically place ads andlinks online that direct consumers to the website of a company.
Remember that the CAP Code applies to af?liatemarketing
The CAP Code applies to afDliate marketing within the categories of communicationoutlined in the Scope of the Code (see ‘Remit: General’). This includes content on anafDliate’s own website and social media if it’s directly connected to the supply ortransfer of goods, services, opportunities and gifts (see ‘Remit: Own websites’ and‘Remit: Social media’). This connection is usually by virtue of the inclusion of ahyperlink, a promotional code or other means by which a new customer or sale can beattributed to a speciDc afDliate.
Where those means are not present, such content is unlikely to fall within the remit ofthe Code unless it is ‘advertising’ under another deDnition, for example see ‘Recognisingads: Advertisement Features’, ‘Video blogs: Scenarios’ and ‘Remit: Social media’. TheCode also speciDcally excludes the ‘natural listings’ on price comparison websites fromits scope (see ‘Remit: Search engines and price comparison websites’).
The ASA has ruled on various forms of afDliate marketing including: emails, banner andin-game ads, paid for ads on Facebook, tweets, websites made to look like editorialcontent, and blog posts (Club Website Ltd, 8 January 2014; JC Inc t/a justcloud.com, 27March 2013; Mobjizz Ltd t/a Ewank.com, 10 June 2015; Flamingo Intervest Ltd t/aZiinga.com, 27 February 2013; bet-at-home.com Internet Ltd, 13 April 2016;Slimtoneplus.com, 19 December 2012; Teepee Disco Ltd t/a PlayPennies, 14 August2013).
Make sure af?liate marketing is obviously identi?able
Remember that the CAP Code applies to af?liate marketing·Make sure af?liate marketing is obviously identi?able·Take care with the content·Infographic·
Rule 2.1 of the CAP Code requires that marketing communications are obviouslyidentiDable as such. The Code also states that marketing communications must notfalsely claim or imply that the marketer is acting as a consumer or for purposes outsideits trade, business, craft or profession and that marketing communications must makeclear their commercial intent, if that is not obvious from the context (rule 2.3).
Some forms of afDliate marketing will be obviously identiDable because of the nature ofthe medium, for example banner ads, branded emails, ‘cashback’ websites or websitessolely dedicated to the product or service promoted. However, in social media, vlogs,blogs, news sites and voucher sites, while it is certainly possible for the wider contextand overall presentation to make clear that the author posting the content has acommercial relationship to the linked-to products, it may not be clear in all cases –particularly where the individual concerned is primarily a creator of non-commercialcontent or where the overall impression is of editorial independence. In such cases,some form of additional disclosure is likely to be required to ensure that the afDliatecontent is obviously identiDable as a marketing communication.
The recommendations below detail how afDliate marketing in different scenarios, if nototherwise clear from the context, could be made obviously identiDable. These are notintended to be exhaustive or prescriptive and approaches other than those suggestedmay be equally acceptable.
Blogs and news sites
Where the content wholly concerns afDliate linked products and is entirely ‘directlyconnected’ to the supply of those products, the commercial nature of the content shouldbe clear prior to consumer engagement to satisfy rule 2.1 (Procter & Gamble (Health &Beauty Care) Ltd t/a Beauty Recommended, 27 May 2015; Mondelez UK Ltd, 26November 2014). The most straightforward way to do so – if not otherwise clear fromthe context - is likely to be including an identiDer, for example ‘Ad’, in the title of the blogor article in such a way that it is clear to consumers before they click through to thecontent, as well as to those reading the content.
Blogs and news sites·Vlogs·Social media posts·Voucher sites·
In addition, although not a requirement of the Code, afDliate marketers may choose toexplain the nature of the relationship between themselves and the company by statingthat they receive a small share of sales through the inclusion of links, promotional codesetc.
Where only some of the links are for afDliated products and/or not all of the content is‘directly connected’ to the supply of those products, it’s unlikely that a general identiDer,for example ‘Ad’, would be necessary in the title but content related to afDliated products(and the links themselves) should be identiDable as advertising. If not otherwise clearfrom the context, this means highlighting the relevant content.
AfDliate marketers are free to highlight their advertising content however they wishprovided that it is obvious prior to engagement which links and associated content areadvertising within each article.
By way of some examples, placing an identiDer such as ‘(Ad)’ before parts of the contentthat relate to afDliated products is likely to be acceptable, as it would distinguish it fromthe editorial content. Or, stating clearly at the beginning of the content that asterisks orother equivalent identiDers set out in the article relate to ‘advertising’ (and/or that theyindicate that the author receives a small share of sales through the related link(s))would also be acceptable. A disclaimer of this nature at the bottom of such a post isunlikely to be sufDcient because there is the potential that the links and any ‘directlyconnected’ claims would not be considered obviously identiDable as advertising at thetime they are encountered by the reader.
Vlogs
As with blogs and news sites, where the content of a vlog wholly concerns afDliatedproducts (usually linked in the description) and is entirely ‘directly connected’ to thesupply of those products, the commercial nature of the content should be made clearprior to consumer engagement to satisfy rule 2.1 (Procter & Gamble (Health & BeautyCare) Ltd t/a Beauty Recommended, 27 May 2015; Mondelez UK Ltd, 26 November2014). For instance, if not otherwise clear from the context, the title of the vlog couldcontain an identiDer such as ‘Ad’ so that it is clear to consumers before they clickthrough to the content, as well as to those watching the content.
In addition, although not a requirement of the Code, vloggers may choose to explain thenature of the relationship between themselves and the company by stating in thedescription of the video, or verbally, that they receive a small share of sales through theinclusion of links, promotional codes etc.
If only some of the links are afDliate links and/or not all of the content is ‘directlyconnected’ to the supply of those products, it’s unlikely that a general identiDer, such as‘Ad’, would be required in the title but content which relates to afDliated products (andthe links) should be obviously identiDable as advertising. If not otherwise clear from thecontext, this means highlighting the relevant content.
Vloggers are free to highlight their advertising content however they wish provided thatit is obvious prior to engagement which speciDc links and associated content areadvertising. This can be done in any number of ways within the video; for example, byincluding on-screen text/holding up a sign when they’re talking about afDliated products(e.g. “Ad’) or verbally explaining which parts of the content are ‘advertising’ (and/or thatthey receive a small share of sales through the related link(s)), before talking aboutafDliated products. It should be equally obvious in the description which products/linksare advertising.
In all cases, afDliate marketers should take care to ensure that the content is obviouslyidentiDable to all consumers who encounter the material and bear in mind anylimitations and technical ‘quirks’ on the platform they are using (e.g. any limits on whatis visible, and when, in different contexts).
Social media posts
If not otherwise clear from the context, social media posts which include afDliate linksshould be obviously identiDable as advertising.
If all of the links within a single post are afDliate links and the post appears on socialmedia where there is no character limit, for example on Facebook, it is likely that thepost will need to include an identiDer at the beginning, for example “Ad”. In addition,although not a requirement, afDliate marketers may choose to state within the post thatthey receive a small share of sales through the link(s).
In contexts were only an image is initially visible, for example on Instagram, it is likelythat an identiDer like “Ad” should be included on the image itself so that the nature of thecontent is clear before consumers engage with the post by clicking on the image.
On Twitter, as space is limited, labelling the content with “Ad” or similar is likely to be theclearest way of identifying it as advertising. Similarly, on Pinterest where the amount ofcontent actually controlled by the ‘pinner’ is limited, placing “Ad” or similar at thebeginning of the free text ‘Description’, because only a small portion of this appearswithout clicking, is likely to be acceptable.
If only some of the links in a post are afDliate links and/or not all of the content is‘directly connected’ to the supply of those products, it needs to be obvious which linksand associated content are advertising. This can be done in any number of waysincluding, for example, marking the relevant links with something like ‘Ad’. Or, dependingon the length of the post, stating clearly at the beginning that asterisks or otherequivalent identiDers relate to ‘advertising’, and/or that they indicate that the authorreceives a small share of sales through the related link(s), would also be acceptable. Adisclaimer of this nature at the bottom of such a post is unlikely to be sufDcient becausethere is the potential that the links and any ‘directly connected’ claims would not beconsidered obviously identiDable as advertising at the time they are encountered by thereader.
In all cases, afDliate marketers need to take care to ensure that the content is obviouslyidentiDable to all consumers who encounter the material and should bear in mind anylimitations and technical ‘quirks’ on the platform (e.g. any limits on how much is visibleand the fact that some social media sites cut off text placed after hashtags or othernon-alphanumeric characters).
Voucher sites
If not otherwise clear from the overall context and presentation, promotional offers on‘voucher’, ‘free goods’, and ‘deals’ websites which include afDliate links should beobviously identiDable as advertising.
Where all of the promotional offers presented include an afDliate link, the website as awhole should make clear the nature of the content and ensure that it does notmisleadingly imply that the website is ‘independent’ or has merely collated the deals forno Dnancial incentive. This will need to be obvious to anyone visiting the website, andmarketers should not rely only on explanations in ‘About Us’, ‘FAQs’ or ‘Terms andConditions’ pages.
If only some of the promotional offers presented include afDliate links, it needs to beobvious which offers and links are advertising. AfDliate marketers are free to highlightthis content however they wish provided that it is obvious and could include placing alabel, for example ‘Ad’, in or around the title of the relevant offers.
Take care with the content
It’s important to remember that, because afDliate marketing falls within the scope of theCAP Code, all of the relevant rules will apply to the content and it therefore should not,amongst other things, mislead materially or cause serious or widespread offence.
Advertisers should also bear in mind that allowing their afDliates to have free rein overthe content of ads does not excuse them from the responsibility of ensuring that theadvertising is compliant with the CAP Code. The ASA has ruled that both the businessand the afDliate marketer are responsible under the Code notwithstanding the fact thatthe ads may have been created solely by the afDliate rather than by the businessthemselves (GTMC Inc, 31 July 2013; LifeStyle Advantage Ltd t/a Essence of Argan, 6March 2013; JC Inc t/a justcloud.com, 27 March 2013).
Similarly, as primary responsibility for observing the Code falls on marketers,promotions run by afDliates that do not adhere to the Code will be problematic(Flamingo Intervest Ltd t/a Ziinga.com, 27 February 2013).
Relying on afDliates to correctly target ads does not mean that the brand itselfrelinquishes responsibility for the promotion of its product. A gambling ad that wasmistakenly sent by an afDliate marketer to a child was complained about andinvestigated. Although the brand contended that the afDliate marketer was responsiblefor the administrative error that caused the child to receive a gambling promotion, theASA upheld the complaint and the brand was named in the ruling (Club Website Ltd, 8January 2014).
See also ‘Remit: General’, ‘Remit: Own websites’, ‘Remit: Social media’, ‘Remit: Searchengines and price comparison websites’, ‘Video blogs: Scenarios’.
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