The ASA’s strict approach to affiliate marketing links and the need for advertising disclosures

What does the ASA’s ruling on several MailOnline articles tell us about its approach to affiliate marketing?

The key takeaway

The ASA has affirmed its stance on affiliate marketing where commercial intent is not obviously identifiable. Both affiliate marketers and the brands they promote hold joint responsibility for compliance with the CAP Code and both need to ensure that affiliate marketing communications are always obviously identifiable. In this case, the “short articles” on the MailOnline homepage which linked to “long-form articles” (that were advertising in their entirety) needed to make clear that the content to which they were linked were ads. The “long-form articles” were advertising in their entirety and also needed to be clearly labelled as such.

The background

 Various articles containing affiliate links were published on the MailOnline website. The ASA received five complaints regarding the articles which challenged whether the articles were obviously identifiable as marketing communications. 

The articles complained of were a mixture of headlines, short-form articles, and long-form articles, all focused on Amazon products (save for one, which focused on the fashion choices of an influencer, with the articles of clothing available to purchase via Skimlinks). Readers who clicked on the short-form articles were taken to the long-form article, which included a review of a product and several affiliate links leading to its purchase. 
Associated Newspapers, the owner of MailOnline, responded by arguing that the content complained of was not within the remit of the ASA as the articles were largely editorial and therefore were not subject to CAP rules to identify marketing communications. 

The development

The ASA rejected Associated Newspapers’ response. It reported that the inclusion of affiliate links meant that the articles were subject to ASA regulation as MailOnline agreed to be an affiliate marketer. It was not essential for the affiliate marketer to have direct control over the content of the article to fall in the remit of the ASA and to be subject to the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code). 

As the long-form articles primarily focused on the Amazon or Skimlinks products, and the short-form articles only served as a preview of the long-form articles, their marketing purpose must have been obviously identifiable to avoid violating the CAP Code. On this point, it was found that the ads were not obviously identifiable as marketing communications. The headlines, format, style, and layout of the articles were all akin to editorial articles, hiding the commercial focal point. Additionally, the wording used was unclear in relation to commercial arrangements. 

MailOnline claimed “Products featured in this Mail Best article are independently selected by our shopping writers…”. This wording was deemed insufficient by the ASA, as the products featured were selected from a list curated by Amazon, so therefore were not independently selected. Further, the ASA deemed the statement “…[we / MailOnline] may earn an affiliate commission” confusing, as barring an administrative error, MailOnline would always receive commission after a purchase via the link. 

The ASA stated that had there not been a marketing arrangement, it was unlikely that the editors would have chosen to write these articles. Therefore, as all the articles were primarily focused on the sale of goods and did not make their marketing communications clear, the ASA found them in breach of the CAP Code (sections 2.1 and 2.3, namely “Recognition of marketing communications”) on five separate occasions by including affiliate links without making it obvious that the catalyst of the articles was through affiliate marketing partnerships. 

Why is this important?

The ruling was the first violation of the CAP Code’s rules on the recognition of marketing communications against a news site after nearly four years. This affirms the strong responsibility on affiliate marketers and brands alike to ensure compliance with marketing disclosures and to ensure that affiliate articles are clearly labelled or constructed in a way to make clear that they are in fact advertising. 

Any practical tips?

Businesses need to be careful when treading the fine line between ads and editorial content. Whilst recent actions under the CAP Code have largely focused on social media campaigns and influencers, it is an important reminder that all content is under possible scrutiny by the ASA, including affiliate links. 

Spring 2023