7 Essential Affiliate Marketing Legal Tips
#1: Individual Affiliates Can Be Held Responsible For Executive Directives
Every affiliate marketer is responsible for their own actions and must adhere to FTC guidelines.
When freelancing, don’t assume the brand’s directives are A-OK, because if they’re not, you -- the affiliate -- could be held liable for “unfair and deceptive marketing.”
Never assume subordinate immunity. If a partner suggests the use of questionable promotional techniques, understand that culpability could fall on your shoulders (in addition to the brand’s).
#2: Brands and Companies Can Be Held Liable For Affiliates’ Actions
Individual affiliates can’t hide behind “superiors”; similarly, brands can’t wag a lone finger at individual affiliates (a few exceptions notwithstanding).
If a rogue marketer crosses the compliance line, and there’s reason to believe the network, manufacturer, or brand knew about the alleged infraction -- or at the very least looked the other way -- the brand or network may be held responsible.
Businesses and affiliate networks can avoid second-hand liability by:
- ⊛ Educating potential partners about your marketing rules.
- ⊛ Hiring an affiliate manager. Investing in this type of position could make all the difference in the eyes of the FTC. Why? Because commissioners appreciate active efforts to monitor affiliates, and take it into account when debating liability.
- ⊛ Using a bespoke business-affiliate contract. Templates found online can prove exceptionally problematic and cost you loads of dough in the long run.
#3: Know and Follow The Dot Com Disclosures
The Dot Com Disclosures (DCD) was one of the FTC’s first Internet marketing guidelines. So, what does it prohibit? This gist is this: Don’t be tricky when it comes to online marketing. Correctly label advertisements and don’t unwittingly cajole people into clicking something against their wills.
#4: Know and Adhere To Native Advertising Guidelines
At the end of 2015, the Federal Trade Commission released the long-awaited Native Advertising Guidelines (NAGs); at the beginning of 2016, FTC slapped retailer Lord & Taylor with the first native advertising citation.
To summarize the NAGs: Don’t trick people into clicking marketing links; don’t make paid links look like original content; make sure visitors can decipher ads from true content. Specifically, the FTC decried the use of “Promoted Stories” as a headline for native advertising sections.
#5: Use #Ad Hashtags When Marketing On Social Media
Here’s the one simple thing to remember about social media marketing: Label every promotional post with an #ad, #sponsored or #paid hashtag -- and don't bury the disclosure in a mess of hashtags. Make sure your affiliates and influencers in your employ follow suit.
#6: Puffery Is Fine; Unsubstantiated Claims Aren't
Ever wonder why NYC is home to 7,000 of the “World’s Best!” pizza parlors? (They can’t ALL be the “best”-- right?) Every pizza maker can claim superiority because of something known as “puffery” -- which is, essentially, allowable exaggeration. The vagueness of “World’s Best” makes it acceptable in the eyes of standard setters.
However, not every New York City pizza place can claim a Zagat rating -- or other industry honor; lying about such a rating would probably qualify as unfair and deceptive marketing -- an offense that often comes with a hefty fine.
To recap: puffery, fine; unsubstantiated claims, not fine.
For a more in-depth explanation of puffery, click here.
#7: Don’t Incorporate “Celebrity Endorsements” Into Marketing Material Without Permission
Famous folks hate it when marketers unwittingly attach their names to health products. In a way, due to the nature of IP standards, celebrities don’t have a choice but to sue in the face of unauthorized endorsement shenanigans.