| December 16, 2016
Performance marketing opens up dramatic opportunities for advertisers—but not without potential risk. Gone are the days of “set it and forget it” affiliate practices. As recently highlighted in the news covering Facebook’s fake news problem, some publisher tactics have become ever more deceptive. The message is becoming clear: if you display misleading content, or your content is displayed on a misleading site, you bear some responsibility for that association—both in the eyes of the consumer and the law.
Now don’t go and shut off your affiliate channel just yet. Technology exists to help you monitor publisher content and much more, helping to lower risks and preserve brand integrity.
But first, let’s look at an example of what not to do:
Affiliate network, LeadClick, found itself in hot water several years ago over deceptive marketing practices that allegedly involved using fake news websites to drive traffic to its client, LeanSpa. Employees at LeadClick advised LeanSpa that “news-style” landing pages were completely acceptable and that their traffic would be generated through fake article pages. While the case dates back to 2011, a federal appeals court recently confirmed a lower court ruling that an online advertiser can, in fact, be held liable for deceptive content—content it did not directly create, yet knew was being used.
LeadClick’s defense was that it was just an interactive computer service—therefore, immune from liability. The court rejected that defense stating that LeadClick did much more than provide “computer access in the sense of an internet service provider, website exchange system, online message board, or search engine.” The court further concluded that “LeadClick’s own actions—recruiting and paying publishers who used fake news sites for generating traffic, managing those publishers, suggesting substantive edits to fake news pages, and purchasing banner space for fake news sites on legitimate news sources—caused significant harm to consumers.” In affirming the lower court’s finding, the federal appeals court ruled that LeadClick and its parent company, CoreLogic must turn over the $11.9 million they received from LeanSpa for their deceptive marketing practices.
In light of this, it’s clear that as a brand, it is your responsibility to ensure the integrity of associated content. This was backed up by the following statement in the LeanSpa court ruling, “[U]nder the FTC Act, a defendant may be held liable for engaging in deceptive practices or acts if, with knowledge of the deception, it either directly participates in a deceptive scheme or has the authority to control the deceptive content at issue.”
This statement can be a slippery slope as it’s not easy to be 100% confident that publisher tactics are entirely above board. This LeadClick case is just one example of what can happen when your performance marketing activities are not properly monitored for program compliance. With the increase in public awareness of compromised content due to recent Facebook and Google efforts to quash fake news, you can bet even more pressure will be applied on all fronts to ensure everyone is playing by the rules.
That said, misleading content is just one of many issues that can arise in the performance marketing space, with each posing legal risks and/or substantial threats to brand integrity. These issues include association with inappropriate content, use of promotion codes unintended for the affiliate channel, malware risk, paid search compliance, domain squatting and more.
As a brand, here’s what you need to have in place to preserve brand integrity and ensure protection from legal liability:
Affiliate Approval- Many of the headaches advertisers experience can be eliminated with an effective affiliate approval service that ensures only the most legitimate and relevant publishers are allowed into a given affiliate program. Criteria used to determine affiliate approval should include traffic generating potential, content relevancy, content appropriateness, channel type, vertical category, country and malware risk assessment.
Content Compliance- Ensure a brand is properly represented in the affiliate channel and that objectionable language is eliminated, approved promotion codes are implemented, unauthorized keywords or phrases are not used, trademarks and product names are properly used, price MAP is adhered to, and there is no plagiarism taking place.
Search Compliance- Publishers can be masters at search engine marketing through the use of related keywords, but keyword bidding must follow guidelines to not interfere with any other ongoing search marketing efforts. Restricted keywords must be monitored, linking practices must be managed, text ad titles and body copy must comply with brand guidelines, page position rules must be followed, and geographic and domain limitations must be followed.
Code Monitoring- Ensure only promotion codes designated for the affiliate channel are being used by publishers to prevent channel overlap and preserve margins. Because a commission is being paid on affiliate sales, some brands may also wish to limit code activity in the affiliate space since they offer additional discounts that can lower ROAS when combined with affiliate channel costs.
Domain Monitoring- Look for active, parked, or available sites featuring brand names, variations and trademarks. Domain monitoring can help prevent publishers from representing themselves as the brand, thus lowering the risk of undesirable associations with unapproved content, or liability should customers’ personal information be acquired under the guise of the brand.
You can see how important it is that a brand has procedures in place to ensure its performance marketing policies are being followed. This helps preserve strategy and brand integrity while lowering costs and also helps advertisers ensure content quality to avoid ending up in court for practices which do not comply with industry norms.
As the issue of misleading content comes to the forefront, and technology for monitoring content improves, there will be new expectations—and likely, new legal precedents—set. Don’t put your brand at risk for permanent damage. Now is the time to ensure you have comprehensive oversight. Learn more about how compliance technology can help you to lower costs across the board, preserve the integrity of your brand, and disassociate from publishers who use questionable tactics or content.