The Advertising Standards Authority ("ASA") and Committee for Advertising Practice ("CAP") have published joint guidance to help those involved in affiliate marketing and advertisers. While this guidance is targeted specifically at affiliate marketing schemes (broadly meaning performance-based marketing where an affiliate is rewarded for new customers that are attracted to a business by the affiliates' marketing efforts) it serves as a useful reminder of some of the key principles of the advertising codes.

The ASA now takes into account the impression created by advertisements overall as well as any specific claims contained within them and will rule on the basis of the likely effect of the advertisements on consumers rather than the marketer's intentions. Primarily advertisements must not mislead the consumer by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely form.

Under the guidance provided, there are some useful tips for ensuring that advertising via affiliate marketing schemes is compliant with the CAP Code:

  1. It must always be clear that the content is an advertisement.

     The CAP Code requires that "Marketing communications must be obviously identifiable as such." If there is any doubt as to whether a consumer will confuse any content with editorial rather than marketing, it would be advisable to head it with "Advertisement feature" or a similar label to make the commercial intent of the piece is clear.
  2. Ensure editorial control over your affiliates' content.

     Where a business is actively inciting an affiliate marketer to promote their products or services and are paying the marketer on the basis of subsequent custom, both the business and the marketer are held responsible for the contents of the advertisement. It is wise therefore, to set certain rules with regards to content generated to avoid any problematic advertising being created by affiliate marketers. This could include a simple approval pre-publication right for the business.
  3. Ensure the significant conditions of promotions are communicated.

     All significant terms and conditions likely to affect a consumers' understanding of a promotion, must be communicated to them clearly and in good time. In advertisements that have an extremely limited amount of space or time, such as banners, there is an exclusion allowing for significant terms and conditions for a promotion to be communicated via a "one click" hyperlink away from the initial promotion. If an affiliate marketer is using content in a medium where space is not limited, the significant terms and conditions will need to be included on the same page as the promotional content.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.