Affiliate links – a question of responsibility

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So here’s another recent ruling from the ASA and this time the complaint was related to a blog by an influencer called the Londoner about a holiday she, her partner and their new-born baby took at a rather fancy villa just outside Marrakech. I must say the place looks incredible – ‘eclectic’ décor, pool and staff (a butler, cook and maids), but I can’t say it was cheap.

Although the Londoner admits she paid even more because it was Easter, apparently you can normally rent this property for £2000-3000 (I’m assuming that’s for a week, but according to the website you have to ‘call for prices’). During her stay, the Londoner was also charged £900 for a week’s food – and that’s without leaving the villa once. I mean, the food looks amazing, but my weekly Tesco bill isn’t usually quite that much.

Anyway, enough about other people’s glamorous lifestyles, the salient point is that the caption underneath one of the many photos that accompanied the blog said, ‘Red dress/yellow dress’ and it linked to two products on the Matalan website. These were, just to spell it out, affiliate links, so the Londoner, whose real name is Rosie Thomas, earned a small commission if a reader clicked through to the Matalan site and purchased a dress. Crucially, though, they weren’t specifically marked as affiliate links and the complaint challenged whether the ‘commercial intent’ was clear.

In response, Matalan told the ASA that it had previously worked on paid-for Instagram posts with the Londoner through a third-party influencer network. However, its previous contractual agreement with Rosie did not require her to post anything about its products on her blog and it hadn’t paid her for the content that she did post. It added that when it worked with influencers via a third-party the influencers were required to follow ASA guidelines, including highlighting advertising content and affiliate links.

The Londoner confirmed that she had bought the Matalan dress she was pictured in herself and when she featured it in the Our Moroccan Hideaway post those links were not part of any collaboration or agreement with Matalan or indeed the third-party influencer network. She pointed out that the FAQ page on her blog did make it clear she used affiliate links and apparently there was a pop-up to the same effect, but she conceded that neither the third-party influencer network nor Matalan were made aware of the inclusion of the links.

My impression is that the Londoner’s intention was almost certainly to comply with the CAP Code, but the ASA upheld the complaint because the affiliate links appeared within editorial content and, it ruled, their commercial nature wasn’t made clear to readers before they engaged with the content – so the labelling wasn’t prominent or upfront enough. Lots of blogs take the same approach as the Londoner. In fact, when it comes to disclosure lots of blogs do far less, so it would be understandable if Rosie were to feel hard done by here, but in the ASA’s view she made a mistake and at least she’ll know in future.

However, I think it’s fair to say that Matalan didn’t do anything wrong here, yet even though Matalan didn’t know about the links at all the complaint against it, albeit in association with TL Blog Ltd, which is the name of the Londoner’s company, was upheld. This puts me in mind of a 2018 ASA ruling against watch brand Daniel Wellington, which was singled out for criticism, even though the influencer it had worked with, my old friend Louise Thompson, was really the one who breached the CAP Code. At least Daniel Wellington had consciously entered into an agreement with Louise, though. Matalan appears to have been completely ignorant of what Rosie was doing.

That strikes me as pretty problematic for brands and businesses, but actually it’s far more problematic and indeed complicated than it initially seems. On her FAQs page, Rosie says, ‘I fund the blog through the partnerships with brands, consulting work and a couple of affiliate companies; places like Skimlinks and rewardStyle, which pay you a very small percentage every time someone buys something, via a link they found on your website.’ What interests me about this, is that, as it says on its website, ‘Skimlinks affiliates product links from your commerce content. Automatically.’

This isn’t the place to explain how it works, but if affiliate links are automatically added to blog posts, then brands are never going to have detailed knowledge about every single one of them. I’d venture that brands will be aware that influencers are going to use affiliate links to their products, because they’ve signed up to partnerships with companies like Skimlinks, Viglink, Rakuten and rewardStyle, but does that make them at least partially responsible for disclosure? What’s more, many people in the business question whether an affiliate link should be treated as an ad in the first place.

I don’t have the answers to any of this – not at the moment anyway – but the issue does make me uncomfortable and I wanted to flag it up. I know keeping up with technology is tough for the ASA – it’s tough for all of us – but its ruling against Matalan and the Londoner does underline for me how important it is to understand how the technology works in practice, because only then can it enforce the CAP Code fairly and effectively.

By the way, if you want to work with influencers on social media prize promotions, Prizeology can help, so feel free to get in touch.

Sarah Burns is Prizeology’s Chief Prizeologist and does not receive any commission if you read this blog post.

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