Who: Committees of Advertising Practice (CAP) and Advertising Standards Authority (ASA)

Where: UK

When: 9 March 2017

Law stated as at: 23 May 2017

What happened:

Over the past few years, the ASA has investigated numerous complaints regarding different forms of affiliate marketing. Affiliate marketing involves an affiliate placing links or ads to a brand’s website and being paid a commission by that brand for the number of sales that are made by tracking those click-throughs. In the UK, voucher sites or blogs are popular forms of affiliate marketing.

It is clear that some guidance was due as it is common for brands and affiliate marketers to respond to these complaints by blaming each other for being responsible for compliance, or by an affiliate marketer acting without authority. There are also many instances where the brand is unable to even identify the third party responsible for placing the ad. As such, CAP has issued new guidance making clear that the CAP Code does indeed apply to affiliate marketing, regardless of whether it appears on an affiliate’s own site or social media.

The guidance focuses on two common rules under the CAP Code that often become problematic in the context of affiliate marketing:

1. Identifiability of ads

The guidance recognises that affiliate marketing takes many different forms and, because of that, some forms will already make their commercial intent clear from their context (e.g. cashback websites). However, this isn’t always the case, particularly when it comes to blogs, voucher sites and social media, where the nature of that relationship isn’t always clear and it can be hard to distinguish genuine editorial content from commercial content.

The guidance helpfully sets out different scenarios and recommends ways of labelling content for each one. Importantly, this also covers sites or pages where only some of the content is about an affiliated product, which can often cause confusion.

2. General content

The CAP guidance confirms that, under the CAP Code, both the brand and the affiliate marketer will be responsible for content, both in terms of ensuring the content itself is compliant, and making sure the content is correctly labelled. This is why many adjudications name both the brand and the affiliate marketer in adjudications, regardless of what may have been contractually agreed between the parties.

Why this matters:

The guidance is a useful reminder and clears up any misunderstandings regarding the responsibilities of both brands and marketers in the affiliate industry. This sends a strong message to affiliates who are just as responsible as brands for following the CAP Code and reminders them that they cannot simply re-post material that may not be compliant without any accountability. From a brand perspective, the guidance also makes clear that responsibility for compliance cannot simply be outsourced and the guidance emphasises that brands must also have awareness as to who is promoting their products and where they are being promoted. Without this aspect of visibility, brands cannot be sure that content posted on their behalf by affiliates is compliant with the CAP Code.