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Nightmare Ruling for Affiliates? ASA’s Ruling Against Matalan Reviewed

Nightmare Ruling for Affiliates? ASA’s Ruling Against Matalan Reviewed

PerformanceIN

Industry experts have their say on the ASA’s latest ruling against Matalan and content affiliate The Londoner on a content post containing affiliate links.

UK advertising watchdog, the Advertising Standards Authority (ASA), has been tightening the rules surrounding posting paid-for content online, cautioning brands and influencers for breaching the guidelines around paid-for posts on third-party platforms such as Instagram and Snapchat etc. However, one particular case last week has attracted some widespread opinion from those in affiliate marketing as the ASA reportedly ruled against clothing retail brand Matalan on a content post containing affiliate links due to a complaint submitted that questioned the clarity of its commercial intent.

Overview

As part of the ASA’s guidelines, any paid-for content post published by a brand or influencer must be identifiable with the #ad hashtag. In the case discussed, lifestyle blogger The Londoner published a blog post titled Our Morroccan Hideaway on May 13 describing the blogger’s family trip to Morocco. The post featured a photo of The Londoner wearing a red dress with the caption “red dress/yellow dress” — linking to two products on Matalan’s website.

In response, Matalan said that they had previously worked with The Londoner on paid-for content on Instagram via a third-party influencer network. However, for this post, in particular, there was no involvement or agreement arranged, confirming that the links for their products on the blog were affiliate links. The brand had no control over the text, message or picture used in the post. The Londoner has also said that the two products were not part of any collaboration or agreement with Matalan — the products were simply included in the post as they were paid for by the blogger and therefore featured at her own discretion.

Despite the evidence from both sides, a single complaint challenged whether the #ad was identifiable as a marketing communication was put forward. This led to the ASA conducting an investigation. The advertising body understood the product links were affiliate links directly connected with the supply of goods provided by Matalan and therefore were ads for the purposes of the CAP Code. The ASA implied that the blog post was entirely editorial, with the affiliate links appearing alongside the blog post content, however, it concluded the commercial nature of the affiliate content should have been made more clear prior to the post engagement.

Did the ASA make the right decision?

When news broke out of this ruling, opinions across the board arose with several disagreeing with the case. Looking at the fundamentals, hashtag #ad is required when posting paid-for content on a third-party platform, or in the case, if the influencer had been told or paid to say something. However, there was no involvement from Matalan, nor did they tell or pay The Londoner to say or write “red dress / yellow dress.” However, the ASA ruled the post as an ad due to its ‘possible’ financial relationship as The Londoner can earn some commission from the links if a consumer purchases the product via the blog post.

Andrew Girdwood, head of media technology at Signal put forward his view on the ASA and Matalan ruling. He argued that the ASA does not rule on technology but on ads and content, stating that the “ruling would stand if the link to Matalan’s website was generated in JavaScript” or if there was a commission earning QR code beside the picture.

“If the ASA tells me that it was explicitly the link that made the phrase "red dress / yellow dress" and ad and not just the possible commercial relationship with Matalan, then this is a game-changer. The ASA needs to very clearly define which technologies magically turn editorials into ads, and which do not. For example, do the presence of coupon codes, phone numbers, turn an editorial into an advertorial?” Girdwood said in his article.

Will affiliates need to hashtag #ad every link?

According to the ASA and the ruling, as it stands, the affiliate (Matalan) would need to identify commercial affiliate links in a post via the #ad. However, as this wasn’t a social media post and purely editorial, is the advertising body blurring the lines between affiliate and influencer?

“Ad disclosure is a hot topic at the moment – influencers are regularly pulled up for failing to disclose when their social posts are sponsored content which they have been paid to create by brands. However, The Londoner’s blog post was not sponsored by or created in conjunction with Matalan – it was a piece of detailed content about a holiday, which included affiliate links as a way to potentially earn a small amount of commission from the activity,” said Charlotte Bennett, managing partner, affiliates and lead generation at OMD EMEA.

Publishers like The Londoner often rely on affiliate links and this type of commission to operate. As this commission is not a guaranteed source of income, Bennett expressed the view that The Londoner can remain “editorially independent” while using affiliate links. However, she questioned the clarity of judging whether or not the context of affiliate activity is sufficient, which could raise concerns for all types of affiliates.

“This ruling states that the ‘commercial intent’ of this content was not sufficiently clear apparent, but it’s not clear how we should judge whether the context of affiliate activity is sufficient. This should raise alarm bells for all types of affiliates. Even voucher code sites, which often explain their commercial model on FAQ pages, might have to review how they explain their commercial relationship to advertisers. Will we need to see #ad after every link to make it clear that voucher code sites have not collated deals out of goodwill?” Bennett asked.

Addressing the issue head-on

It’s evident that affiliates are somewhat being challenged on the usage of affiliate links in paid-for content despite it being a source of commission. If an agreement has been made between the brand and publisher, for example, then the ASA’s case of identifying the commercial intent behind the post is valid to some degree. However, with no agreement between the affiliate and the content posted on a website as opposed to a third-party social platform, it’s harsh to scrutinise the brand on the basis of commercial intent where there wasn’t any in the first place.

Sharing his thoughts on the ruling, Awin’s global strategy director Kevin Edwards said that such cases are “now a front mind reality for brands, networks and publishers” and questioned the industry’s lack of initiative to produce effective standards to support affiliates in navigating such challenges.

“The warning signs have been there and this is a classic case of an industry that has had a good history of self-regulating failing on this topic to produce collaborative standards to help publishers navigate this increasingly problematic issue. This is frustrating as we’ve known for years this would come to pass and with more and more budget piling into affiliate marketing, so additional scrutiny should be expected,” said Edwards.

Edwards added that improvements shouldn’t just rest solely on publishers — instead we need to collaborate together as an industry to address the issue and steer the conversation forward.

“Our thoughts are we need to urgently create some global guidelines on this rather than publishers blindly trying to do the same in a fragmented and uncoordinated way,” he continued.

“Awin dipped its toes a few years ago with a set of guides and dedicated consumer-facing page that publishers can link to explaining how the affiliate model works, but we need to push these initiatives to the next level. It’s interesting to note that as huge ‘traditional’ publishers like Dennis and ESI, alongside newer players like Shortlist and Buzzfeed, who recently announced they’re ramping up their affiliate investment, enter the fray, they will demand their own set of best practice guidelines. It’s beholden on networks as industry gatekeepers to shape that conversation.” 

Was the ASA right in ruling Matalan and should affiliates address the issue using #ad on affiliate links to identify commercial intent? Let us know your thoughts in the comments below.

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Mustafa Mirreh

Mustafa Mirreh

Mustafa is a senior journalist at PerformanceIN. Reporting on the latest day-to-day news and updates from the world of performance marketing, while also doing social media promotion, live reporting of events, article features and interviewing key industry players.

 

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