Who: The Advertising Standards Authority (ASA) and Associated Newspapers Ltd t/a MailOnline (Associate Newspapers)
Where: United Kingdom
When: 21 December 2022
Law stated as at: 18 January 2022
A number of articles, featuring affiliate links, were published via MailOnline and www.dailymail.co.uk. The ASA investigated and upheld five issues in relation to whether they were obviously identifiable as marketing communications.
The content complained of was a mixture of headlines, short form articles and longer form articles. For example, one of the complaints related to a headline on the homepage that said “Keep your coffee hotter for longer! These chic glass coffee cups are double walled for stronger insulation – and they’re currently on sale for just £11.30 for two”. Readers, who clicked the link, were then taken to the full article. The text underneath the body of the article said “Products featured in this Mail Best article are independently selected by our shopping writers. If you make a purchase using links on this page, we may earn an affiliate commission”. The text was in italicised grey font and was less prominent than the rest of the article. Other paragraphs of the article also contained hyperlinked text, taking readers to the page where they could purchase the glass coffee cups via Amazon.
Associated Newspapers argued some of the content complained of was outside of the ASA’s remit because it was genuinely editorial in nature and were exclusively controlled by Associated Newspapers, which meant they were not advertorials or advertisements. In particular, they cited paragraph II(k) of the UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (CAP Code) Scope of the Code, which says that the code does not apply to editorial content, news or public relations material. Associated Newspapers also argued (amongst other things) that the inclusion of “clearly signposted” affiliate links did not render the whole article or headline an ad, because the remainder of the material was within Associated Newspaper’s editorial control.
The ASA held that, by including affiliate links on its site, Associated Newspapers agreed to be an affiliate marketer and those links were therefore ads connected with the supply of goods on their own site. It was irrelevant that Associated Newspapers had full control over how affiliate links and related content were presented, as opposed to the affiliate brand. Where an affiliate link appears alongside genuine editorial content, the ASA acknowledged that the CAP Code would only apply to the parts relating to the affiliate brand or product. However, the CAP Code would likely apply to entire content where the affiliated brand or product is the subject of that content. Based on this, the ASA held that the content of the long-form articles investigated was advertising in its entirety because it was “wholly concerned with promoting the products which could be purchased via the affiliate links”. Similarly, the shorter form articles fell within scope of the CAP Code because their “sole purpose was to provide a ‘teaser'” for the longer articles – which were ads in their entirety (even though some of the shorter articles did not contain affiliate links themselves).
On the question of whether the ads were obviously identifiable, the ASA’s general comment was that this was not the case because: the headlines were not sufficient to make clear that the articles related to advertising content; and the features of the ads (for example, the style, format and layout) mimicked that of the editorial content on the sites, so the commercial intent was not obvious from the context. The ASA also commented that the wording of the long-form articles “implied that the products had been independently selected by MailOnline’s journalists, as a result of purely editorial decisions, which we considered was not the case”. Disclaimers such as “may earn an affiliate commission” were also deemed ambiguous and confusing. This is because it implied that Associated Newspapers would not always earn commission on purchases made via the links when, in fact, they would (unless there was an administrative error, for example).
Please note that we were not been able to go into the detail of each allegation for the purposes of this article, so readers are invited to read the ASA ruling in full for more information.
Why this matters:
This ruling is important because it demonstrates that both affiliate marketers and the brands they are promoting are jointly responsible for complying with the CAP Code, by ensuring that affiliate marketing communications are always be obviously identifiable as such. The ruling also serves as a helpful reminder that advertisers need to tread carefully when navigating the line between editorial and ad content.