Severe problems with the ASA's ruling against Matalan

Yesterday, the Advertising Standard's Authority ruled against Matalan after a content affiliate linked to them.

I have considerable problems with the ruling. Fundamentally, there was no advertisement, and the ASA should not have been involved.

I've made several calls to the ASA but, as of this morning, they're yet to connect me to someone who can talk about the case. I'll add to this page, or blog again if we connect and I learn something new from them.

In summary, in a post on The Londoner called Our Moroccan Hideaway there's a picture of the blogger and her child. Below the photograph is the phrase "red dress / yellow dress" and links to where you can buy those dresses from Matalan.

Matalan did not ask The Londoner to do this. Matalan had no control over the text, message, picture or anything on the blog (although they've previously paid The Londoner for influencer work).

The "red dress / yellow dress" links pass through an affiliate network, and so The Londoner might earn a commission if someone visiting Matalan after clicking on these links makes a purchase.

One person complained, and the ASA decided to investigate.

The ASA ruled that Matalan was in breach for failing to disclose an advert. The suggested remedy is to put the phrase #ad in the copy as if the blog mention was a tweet or Instagram post.

Previously, the ASA had made it clear to me that they only investigate when an advertiser has been involved in the message of the ad.

Deciding to investigate this case takes the ASA into new territory.

It's frustrating that they're treating an independent publisher's website as if it was social media. The word "blog" is unhelpful. Do they really expect people to add #ad at the end of sentences, mid-way through a paragraph? Apparently, they do.

I can't prove it, but this was a malicious complaint. Anyone who can identify affiliate links and then make a case to the ASA is not a naive member of the public.

The ASA's ruling says it is insufficient to have a page on your site explaining how you are funded.

As Matalan was not involved with the post and didn't ask the Londoner to say "red dress / yellow dress" to describe a red dress and yellow dress the ASA is saying that because there is a (possible) financial relationship, then the phrase becomes an ad. This is despite recognising the post as editorial.

The ASA does not rule on technology. It rules on ads and content. Presumably, the ruling would be the same if the link to Matalan was generated in JavaScript. The decision would stand if there were a commission earning QR code beside the picture. The ruling would be the same if The Londoner had written "red dress / yellow dress from Matalan" and there was some sort of affiliate relationship in place that tracked sales despite the lack of a link.

If the ASA tells me that it was explicitly the link that made the phrase "red dress / yellow dress" and ad and not just the possible commercial relationship with Matalan, then this is a game-changer. The ASA needs to very clearly define which technologies magically turn editorials into ads, and which do not. For example, do the presence of coupon codes, phone numbers, turn an editorial into an advertorial?

Here are some scenarios to consider.

Sky offers £50 in Marks and Sparks vouchers to customers who recruit their friends and family. If I send an email saying "You can watch Game of Thrones on Sky" to a friend and ask them to put my name in the referral section of the sign-up form - is Sky in breach of the ASA?

I would say no; the ASA's Matalan ruling would suggest otherwise because I did not tell my friend their action would generate vouchers for me.

If I run a free event on SEO and Affiliate marketing in the backroom of a pub where I'll be paid my deposit back if at least 30 people turn up, do I need to mention the deposit deal on my tickets (and with every mention of the event) or be in breach?

I would say no; the ASA might now accuse me of having an undisclosed financial relationship.

If I run a newspaper and decide to introduce a weekly column about investment ISAs to attract (and be paid by) more financial advertisers, do I need to disclose that the decision to write about ISAs is commercially minded?

Hopefully not, but even this seems to be caught up in the "a-ha! but there's a possible financial relationship" clause the ASA has invoked.

By the way, I have to say "possible financial relationship" because just by linking through an affiliate platform does not mean that the publisher has any relationship with the merchant. Sometimes they might. Sometimes they might not. There will likely be conditions on what sales earn commission and which do not.

Here's another example. If I'm the ASA and I write up a case about Matalan, mentioning that Matalan sells red and yellow dresses, but fail to disclose that as an advertiser Matalan funds me, am I in breach? I've just talked about Matalan but not mentioned my financial relationship with Matalan. Uh-oh! Undisclosed commercial relationship.

Thanks for reading. This blog uses Skimlinks. That's the technology that automatically and without my control or influence spots words and phrases to turn into affiliate links. I don't know which brands the algorithm might pick. I don't know which products or services might earn a commission. Therefore, any link you see on this blog post might be a commercial one.

In the future, I might use other technologies. They might also transform this post in such a way that helps monetise this content. Who knows what the future will bring? However, to stay compliant with the ASA, I'm pre-warning that anything anyone says anywhere at any time might, at some point, co-exist with a commercial relationship.

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