Day Trip Media: Why Merchant Supplied Content For Affiliates Could Land You In Jail

Thursday, 5 June 2008

Why Merchant Supplied Content For Affiliates Could Land You In Jail

From May the 26th, some new laws that partially govern the way merchants advertise online came into effect. The Unfair Commercial Practices Directive (UCPD) is a EU wide set of regulations that the is in place. The laws outlaw a number of practises that companies and businesses use to unfairly market themselves, in the aim of protecting consumers from being duped. The BBC have a good overview of this new law and the abuses it aims to stamp out.

For online affiliate marketers and web masters, the most important new piece of the legislation is this prohibition. Companies are now banned from: "Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer." This directly affects a number of things such as using fake promotional blogs and seeding positive comments about services or products on the web. It also brings into question whether affiliate marketers should disclose that their links are affiliate links as well.

Lee Mccoy first brought this new bit of legislation to my attention last week, with his piece entitled "The Death Of Affiliate Marketing? Declare Your Relationship or Go To Jail?" which looks at the area of disclosure. As ever with new laws to do with the internet and marketing, there is a lot of confusion and grey area. Lee focuses on the area of disclosure and how it's not clear what actions affiliates should take. Something else struck me today whilst reading a blog about bingo, and it's another aspect for affiliates that Lee didn't touch upon. It applies to the impact this legislation will have on the reviews and content that merchants will provide for their affiliates to use on their sites.

It's common practice for merchants to supply their affiliate with copy to add to their sites. It's particularly prevalent in the bingo world where I'd guestimate about 90% of sites carry these merchant provided reviews. You don't have to look far to see merchants offering to write content for their affiliates sites, whether it be boilerplate or bespoke. Personally I have never used this content, I've always written my own so as I can avoid any claims of bias at my sites (it comes from practices of balance drummed into me whilst working at the BBC.)

It's just as well, because my understanding of this new law is this, all these reviews on sites are now illegal unless there is some clear disclosure that the content was provided by the company it's being used to promote. In fact, any merchant now offering content and reviews without insisting their relationship with the author is disclosed is now breaking the law. In one fell swoop the new regulations have criminalised thousands of webmasters and merchants in the UK, who I'm guessing on the whole don't even realise they are in breach of these new laws.

And it goes further than just using their content. In the bingo world for instance, there are lots of blogs written about the game and the offers by both affiliates and bingo operators. There are also plenty of fake personas behind these blogs as well as fake personas on social networking sites, all with the distinct purpose of marketing. Without some sort of disclosure on these profiles, blogs and the like, they are now all in breach of the law, and could all face legal fines or imprisonment.

As to how effectively they can be implemented, well, that's another matter. I accept the need for these laws and actually believe they are a good thing (I got caught out by fake marketing blog myself in the past) but to be honest, I can't see how this can possibly be policed effectively. There may the odd big bust for the big guys, but beyond that, I've not seen any real policing of the Gambling Act advertising regulations that came in last September, and that continues to be abused by many sites on a daily basis. If a fairly small subset of advertisers cannot be policed, then something of this new law's scope will be nigh on impossible.

I'm not condoning that people should flaunt these regulations, far from it. I've always been open on my sites about my relationship with the merchants I promote, and it might just be enough to have some sort of simple disclaimer page about your affiliate links to cover yourself. Just thinking of the bingo realm, I know of several highly visible blogs that are owned by bingo operators and run as an SEO boost or publicity mouthpiece for their commercial sites without any sort of disclosure. Whilst it's obvious to anyone in the space, the average visitor would be completely clueless, and it's exactly this sort of clueless visitor that these laws hope it protect.

As an affiliate you should now think hard and fast about using any content provided you by the merchant, especially if it's editorial in its nature. If you do use it, you should make it quite clear that you disclose its source. Merchants on the other hand should now ensure that their affiliates are aware of these laws, and make certain they state that the affiliates must disclose where the material has come from. The detail of to what level this should be done is yet to become clear, and whilst it's unlikely you will be sent to jail, the possibility none-the-less exists. Personally I'd rather be safe than sorry.

Posted by Dio Bach at 12:45

0 Comments: