Background
Summary of Council decision:
Five issues were investigated, all of which were Upheld.
Ad description
Articles appearing on MailOnline, www.dailymail.co.uk, featuring affiliate links:
a. The homepage, seen on 23 August 2021, included an article headline which stated “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”. The headline was accompanied by an image of the cup and smaller text which stated “Not only do they look incredibly chic but the Judge Double Walled Glass Coffee Cups with Handle help keep your coffee hotter for longer. They’re now on sale for just £11.30 for two.” Readers who clicked on the link were taken to article (b).
b. An article, seen on 23 August 2021, featured the headline “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”. This was followed by details of the author and publication date, and icons to share the page. Underneath, italicised grey font that was smaller than that used in the body of the article stated “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 second paragraph of the article stated “If you've eyed up glass coffee cups from afar but have been put off by the price, then you're in luck, as Amazon has dropped the price of the top-rated Judge JDG35 Double Walled Glass Coffee Cups with Handle, now on sale for £11.30 for two” and “With a whopping 5,900 ratings and a near-perfect average score of 4.6 out of 5, it's no surprise to learn that the Judge Double Walled Glass Coffee Cups are an Amazon bestseller”. In that paragraph the text “Judge JDG35 Double Walled Glass Coffee Cups Handle” was hyperlinked, taking readers who clicked on the links to a page on Amazon’s website where they could purchase the cups. Further paragraphs also included hyperlinked text that linked to the same page on Amazon.
c. The homepage, seen on 25 August 2021, included an article headline which stated “These pyjama bottoms are so comfortable that shoppers are snapping them up in multiple colours - especially since they’re now reduced to just £15.49”. The headline was accompanied by an image of the pyjama bottoms and smaller text which stated “Today you can add a pair of the shopper-loved Famulily pyjama bottoms to your nightwear collection for just £15.49 (usually £18.99), thanks to this Amazon deal”. Readers who clicked on the link were taken to article (d).
d. An article, seen on 25 August 2021, featured the headline “These pyjama bottoms are so comfortable that shoppers are snapping them up in multiple colours - especially since they're now reduced to just £15.49”. This was followed by details of the author, publication date, icons to share the page, and the same italicised grey font underneath as in ad (b).
The article began “Whether you’re lounging on the sofa or getting into bed, pyjama bottoms are a staple item. And according to hordes of Amazon shoppers, there is one particular pair of cosy pyjama bottoms sure to help you nod off in style. Enter the Famulily Women’s Casual Floral Wide Leg Pajama [sic] Lounge Pants, which have earned over 3,200 five-star ratings from shoppers who note how ‘incredibly comfortable’ and ‘soft’ they are”. The text “cosy pyjama bottoms” and “Famulily Women's Casual Floral Wide Leg Pajama [sic] Lounge Pants” was hyperlinked, taking readers who clicked on the links to a page on Amazon’s website where they could purchase the pyjama bottoms. Further paragraphs also included hyperlinked text that linked to the same page on Amazon.
e. An article, seen on 6 January 2022, featured the headline “‘I'm living in a different world now': Molly-Mae Hague admits her old friends from home do not 'relate' to her since rising to fame on Love Island”. The article included a story relating to the headline.
Partway down the page, a box was headed with the text “femail fashionfinder” followed by an icon of clothes on hangers and the text “Shop for more >”, all in pink font. Larger, bold black text underneath stated “Make like Molly-Mae in a bodysuit by Mugler”. Smaller text stated “We are somewhat obsessed with Molly-Mae Hague's style evolution! The former Love Island star effortlessly blends high-end and high-street to create show-stopping looks, with a wardrobe boasting luxury labels such as Bottega Veneta, Dior, Prada and Tom Ford, along with a host of affordable brands like Miss Pap, PrettyLittleThing and Free Society. Here Molly-Mae has opted for head-to-toe designer, teaming a Mugler wool bodysuit blazer with Tom Ford's pyjama-esque pants. Molly's BFF Maura Higgins recently wore the pink satin version of these trousers, so clearly they're hot property! Unfortunately for us Molly's bodysuit is no longer available to buy, but you can click the product image to take a closer look and keep your fingers crossed for a restock. In the meantime, channel the style icon with the help of our carousel. While you're there, why not complete Molly's look with her Tom Ford pants ...”. At the bottom of the box, smaller grey text stated “MailOnline may earn commission on sales from these product links”. Next to the body of the text was an image of the blazer, and a button underneath that stated “Buy now” which hyperlinked to a third-party site where consumers could purchase the blazer.
Underneath that box, the page included another box titled “…NOW GET ONE LIKE IT” which included images of other clothing items which also hyperlinked to the third-party site.
f. The homepage, seen on 8 April 2022, included the headline “‘A digital personal trainer on my wrist!’: The Fitbit Charge 4 is on sale for £79.99 down from £129.99 – that’s its lowest price ever on Amazon”. The headline was accompanied by an image of the Fitbit and the text “Need a push to get moving this spring? The hugely popular Fitbit Charge 4 Advanced Fitness Tracker is on sale for just £79.99 (was £129.99) that’s an impressive saving of £50”. Readers who clicked on the link were taken to article (g).
g. An article, seen on 8 April 2022, included the headline “‘A digital personal trainer on my wrist!’: The Fitbit Charge 4 is on sale for £79.99 down from £129.99 – that’s its lowest price ever on Amazon”. This was followed by details of the author, publication date, icons to share the page, and text in italicised grey font underneath which stated “Products featured in this Mail Best article are independently selected by our shopping writers. If you make a purchase using links on this page, MailOnline may earn an affiliate commission”.
The body copy began “If you’re looking for the push you need to get moving this spring, then Amazon has just the deal for you. The Amazon Spring Sale has slashed the price of the hugely popular Fitbit Charge 4 Advanced Fitness Tracker to just £79.99 (was £129.99) – that’s an impressive saving of £50”. The text “Fitbit Charge 4 Advanced Fitness Tracker” was hyperlinked, taking readers who clicked on the links to a page on Amazon’s website where they could purchase the item.
The rest of the article also included hyperlinks to the same page on Amazon, and a box which included the text “Fitbit Charge 4 Advanced Fitness Tracker with GPS The Fitbit Charge 4 tracks and records your stats beyond calories burned and steps made. The advanced activity trackers can monitor your sleep stages and 24.7 heart rate and is even water-resistant up to 50 meters [sic]. And unlike previous models, you can control music and browse playlists and podcasts. £79.99 (save £50)” and a “SHOP” button which hyperlinked to the same page on Amazon.
h. The homepage, seen on 8 April 2022, included an article headline which stated “This Karcher window vac will clean your windows inside and out with NO streaks – and it’s on sale with 42% off at Amazon”. Next to the headline was an image of a woman cleaning a mirror using the item. Clicking on the link took readers to article (i).
i. An article, seen on 8 April, included the headline “How to clean windows: This Karcher window vac will clean your windows inside and out with NO streaks - and it's on sale with 42% off at Amazon”. This was followed by details of the author, publication date, icons to share the page, and the same italicised grey font underneath as in ad (g).
The body text of the article began “Spring is here, and with Easter around the corner, you might be considering giving your house a thorough spring clean ahead of the seasons [sic] entertaining. When it comes to cleaning windows, mirrors and other flat surfaces, thousands of Amazon shoppers swear by the Kärcher WV2 Plus N Yellow Edition Window Vac for the best results. And fast”. The text “Kärcher WV2 Plus N Yellow Edition Window Vac” was hyperlinked, taking readers who clicked on the links to a page on Amazon’s website where they could purchase the item.
The rest of the article included hyperlinks to the same page on Amazon and a box which included the text “Kärcher WV2 Plus N Yellow Edition Window Vac Lightweight and with a handy run time of 35 minutes, the Kärcher Window Vac makes cleaning less hassle. Sucking up excess moisture whilst cleaning, it leaves windows, tiles, mirrors and shower screens spotlessly clean, dry, and streak-free. £48.99 Save £36” and a “SHOP” button which hyperlinked to the same page on Amazon.
j. The homepage, seen on 11 April 2022, included an article headline which stated “'40-year-old muck gone': Shoppers are sprucing up their patio and garden furniture with this Bosch pressure washer - on sale for £31 off”. Next to the headline was an image of the item and the text “Need help cleaning your patio and garden furniture? The Bosch EasyAquatak 110 High Pressure Washer is on sale for just £58.25 (was £89.99), so you can power your way through your …”. Clicking on the link took readers to article (k).
k. An article, seen on 11 April 2022, included the headline “'40-year-old muck gone': Shoppers are sprucing up their patio and garden furniture with this Bosch pressure washer - on sale for £31 off”. This was followed by details of the author, publication date, icons to share the page, and the same italicised grey font underneath as in ads (g) and (i).
The body text of the article began “If you need help sprucing up your patio or need assistance cleaning your garden furniture ahead of the Easter weekend, then Amazon has just the deal for you. The Bosch EasyAquatak 110 High Pressure Washer is now on sale for just £58.25 (was £89.99) so you can power your way through your garden chores in half the time”. The phrase “The Bosch EasyAquatak 110 High Pressure Washer” was hyperlinked, taking readers who clicked on the links to a page on Amazon’s website where they could purchase the item.
The rest of the article included hyperlinks to the same page on Amazon, and a box which included the text “Bosch 06008A7F70 EasyAquatak 110 High Pressure Washer Get help cleaning your patio and garden furniture ahead of spring entertaining with the Bosch EasyAquatak 110 High Pressure Washer. Weighing just 4 kg and with an easy to carry handle, it comes equipped with a range of accessories to tackle dirty cars, paving stones, driveways and decking, all with minimal effort” and a “SHOP” button which hyperlinked to the same page on Amazon.
Issue
1. The ASA challenged whether the homepage headlines in ads (a) and (c) and the articles in ads (b) and (d) which featured affiliate advertising links, were obviously identifiable as marketing communications.
The ASA received four complaints:
2. One complainant challenged whether the homepage headline in ad (f) and the article in ad (g) which featured affiliate advertising links, were obviously identifiable as marketing communications.
3. One complainant challenged whether the homepage headline in ad (h) and the article in ad (i) which featured affiliate advertising links, were obviously identifiable as marketing communications.
4. One complainant challenged whether the homepage headline in ad (j) and the article in ad (k) which featured affiliate advertising links, were obviously identifiable as marketing communications.
5. One complainant challenged whether the affiliate advertising in ad (e) was obviously identifiable as a marketing communication.
Response
1. – 4. Associated Newspapers Ltd t/a MailOnline said that ads (a) to (d) and (f) to (k) were genuine editorial content written by their professional journalists. They were not advertorials or advertisements; no third party had approval rights over the content of the articles. Associated Newspapers had exclusive control over the content.
They highlighted that paragraph II(k) of the CAP Code’s Scope of the Code stated that the Code did not apply to editorial content, and that paragraph II(q) further set out that the Code did not apply to website content “[…] including (but not limited to) editorial content, news or public relations material […]”. That paragraph noted that the Code did apply to other types of website content, as set out in paragraphs I(d) and I(h) of the Scope of the Code. Associated Newspapers said, in particular, that the content under investigation by the ASA did not meet the criteria set out in paragraph I(h) that the Code applied to content that was under the advertisers’ “control” that was directly connected with the supply of goods and services.
Associated Newspapers said the long-form articles (ads (b), (d), (g), (i) and (k)) contained affiliate links which related to Amazon’s affiliate programme. They acknowledged the Code applied to affiliate links. However, they were clearly signposted at the top of each article by the wording “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 / MailOnline] may earn an affiliate commission”. They considered that this wording made the nature of the content clear to readers; that they were editorial content which contained clearly indicated affiliate links.
They said the inclusion of clearly signposted affiliate links did not render the remainder of their editorial content an ad, nor did they bring the entire editorial content within the ASA’s remit. Aside from the inclusion of those links, the remainder of the articles were exclusively within Associated Newspapers’ editorial control.
They said that while the editorial referred to products and did so in favourable terms, it could equally have referred to some or all items in more critical or neutral terms, or in whatever way their journalists chose to write about them. It was entirely within Associated Newspapers’ editorial decision to choose whether and what to write about, based on what they believed would be of interest to their readers. They believed that to consider the articles as advertising in their entirety would curtail the freedom of the press.
Associated Newspapers said that ads (a), (c), (f), (h) and (j) (the ‘short articles’) did not include affiliate links and there was no payment made for the content, and no control of the content, by a third party in any sense. The short articles linked to genuine long-form editorial, which merely included clearly signposted affiliate links. Clicking on the short articles to follow through to the long-form articles did not trigger any payment to Associated Newspapers. They considered the appropriate place and time to include a signpost for the affiliate links was at the top of the long-form articles. The short articles therefore did not require any label or disclosure.
They believed that labelling the short articles “advertisement” would have been confusing, misleading and inaccurate, and was not required by the CAP Code. Additionally, such labels would bring more editorial content within the ASA’s remit, even the editorial content of news outlets, which would be an overreaching of the ASA’s authority.
5. With regard to ad (e), the Femail Fashion Finder box which was displayed partway down an article about Molly-Mae Hague, this also contained genuine editorial copy, about Molly-Mae Hague’s style evolution. Associated Newspapers’ journalists had not collaborated in any way with Molly-Mae Hague or her representatives. Instead, they investigated which pieces of clothing she was wearing, to let their readers know about them, because the style choices of celebrities were of interest to their readers.
The affiliate links in ad (e) had been included using the affiliate platform Skimlinks, They said the blazer that was the focus of the fashion critique in the Femail Fashion Finder box was no longer available to buy when the article was published. A link was provided so that readers could find out more about the product, but it had not been available to purchase via any links provided by Associated Newspapers. Therefore, no payment was made to Associated Newspapers directly or indirectly via an affiliate arrangement in relation to that product.
They said that served as an example that their fashion journalists critiqued clothing they considered fashionable and newsworthy, and were not guided by a desire to drive traffic to affiliate links. Instead they were identifying and commenting on fashion trends, and often (but not always) letting consumers know where they could find and buy the same or similar items. They did so in a clear and transparent way, using clear signposting where affiliate links were used.
They highlighted that a pink and black banner appeared at the top of the page, directly above the headline of the article, which stated “CHECK OUT OUR FASHION EXPERT VERDICT LOOK OUT FOR THE femail fashion finder TAG ON THIS PAGE Or see more of today’s top celebrity looks here”. They also noted that the Femail Fashion Finder box was visually different and distinguishable from the rest of the page, including the main article. It featured the text “femail fashion finder” in pink at the top, which identified it as being a discrete section written by their professional Femail Fashion Finder journalists.
Towards the bottom of the Femail Fashion Finder box, under the heading “…NOW GET ONE LIKE IT”, a carousel showed items of clothing that were similar in style to the black bodysuit blazer. Each was accompanied by the brand name and a retailer alongside a “Visit site” button; those links were affiliate links. They said it was obvious that those buttons would take readers to a third-party site. Additionally, they also included the clear disclosure “MailOnline may earn commission on sales from these product links” above the carousel. Those affiliate links were therefore clearly signposted. Aside from those links, the remainder of the box was genuine editorial that was exclusively within their editorial control and therefore outside the ASA’s remit.
Assessment
1. – 4. Upheld
The CAP Code required that marketing communications must be obviously identifiable as such, and must make clear their commercial intent if that was not obvious from the context. Paragraph I(h) of the Scope of the Code stated that the Code applied to “advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that [were] directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist[ed] of direct solicitations of donations as part of their own fund-raising activities”.
The ASA first considered whether the content under investigation fell within the scope of the Code.
The links to the products throughout the ‘long-form articles’ ads (b), (d), (g), (i) and (k) were affiliate links. By including affiliate links in content on the MailOnline, Associated Newspapers entered an agreement to be an affiliate marketer, i.e. to promote the products in exchange for payment as a result of clicks and/or purchases resulting from consumers clicking on those links. The affiliate links were therefore advertising by Associated Newspapers, on their own website, that was directly connected with the supply of goods. Because of that, it was not relevant whether the advertiser whose products were linked to (in this case Amazon) had any direct control over the way in which the affiliate links and related content were presented on the MailOnline. We concluded the links were ads which fell within Scope of the Code paragraph I(h). Affiliate marketers were jointly responsible along with the brands they were promoting for ensuring that the relevant advertising complied with the CAP Code.
We acknowledged that in some instances affiliate advertising may appear alongside content that was genuinely editorial in nature. In such circumstances we considered the Code would only apply to the parts that referred to the affiliate brand and its products, as well as any text that included an affiliate link. If the content in its entirety referred to the affiliate brand or its products, the Code was likely to apply to the content in its entirety, although consideration would be given to arguments that the material was primarily editorial in nature. We therefore next considered whether the Code applied to the entirety of the content in which the affiliate links appeared.
Affiliate links appeared in ads (b), (d), (g), (i) and (k). All five webpages featured a headline which referenced the specific product or product type and highlighted that it was on sale, followed by between 10 and 14 paragraphs which included four or five affiliate links. The first paragraph in each gave brief context for why consumers might be interested in the product type before going on to discuss the benefits of the specific product. Each article highlighted various positive features of the product, such as its practical uses and benefits, stylish appearance and comfortable fit, or its comprehensive technical features. Each emphasised the sale price of the product, its popularity with consumers, the number of positive reviews on Amazon (in particular for ads (d), (g), (i) and (k), the number of five-star reviews), and reproduced specific positive quotes from customer reviews on Amazon. Ad (b) included one (non-affiliate) link to a more well-known brand’s comparable product, but only in the context of equating the quality of the two products while highlighting that the other brand’s product was “substantially more expensive”. Ads (g), (i) and (k) additionally included boxed sections partway down the page which highlighted key features of the product, and included two additional affiliate links, one in the form of a “Shop” button. Those ads used similar phrases to introduce quotes from Amazon reviews, such as “One impressed shopper […]”, “Another agreed, adding […]” and “A third penned […]”.
We noted Associated Newspapers’ argument that it was entirely within their editorial decision to choose whether and what their journalists would write about, based on what their readers would be interested in. Associated Newspapers’ affiliate arrangement was with Amazon. We understood the products were chosen by Associated Newspapers to be featured in the MailOnline from a pre-determined, and therefore curated, selection of products that Amazon wished to be specifically promoted by other parties. We also understood that the journalists who wrote the content were not making a personal recommendation based on their own use and assessment of the products, but rather one based on Amazon customer reviews of products on that curated list. We considered Associated Newspapers’ decision about which products to feature therefore was not wholly independent. We considered it was unlikely that Associated Newspapers would have chosen to publish content about the featured products in the MailOnline in the absence of the affiliate arrangement.
Based on the above, we considered the content of each webpage was wholly concerned with the promotion of the products which could be purchased via the affiliate links and that it was not editorial content. Therefore the content of each of the ‘long-form articles’ ads (b), (d), (g), (i) and (k) was, in its entirety, advertising for the relevant product.We next considered whether the ‘short articles’, ads (a), (c), (f), (h) and (j) which had appeared on the MailOnline homepage, were ads within the scope of the Code. We acknowledged that they did not include affiliate links. However, we considered their sole purpose was to provide brief ‘teaser’ information to readers of the MailOnline’s homepage to persuade them to click though to the ‘long-form articles’ which were ads in their entirety and from which they might click on the affiliate links to purchase the products. We concluded ads (a), (c), (f), (h) and (j) were therefore also in their entirety advertising by Associated Newspapers on their own website that was directly connected with the supply of goods.
We then considered whether it was clear that ads (a) to (d) and (f) to (k) were obviously identifiable as marketing communications which made clear their commercial intent, as required by the Code.
The ‘short articles’ all appeared on the homepage of the MailOnline. They all had the same layout, featuring headings which replicated the headline of the webpage to which they linked in bold blue text, underneath which was a small thumbnail image of the product on the left and text in smaller black font to the right referencing the product, brand, and the sale and pre-sale prices of the products. Underneath that, linked text indicated the number of comments that had been made on the ‘long-form article’ and included a link to share the content. The layout followed exactly the same format as the short articles relating to editorial content which appeared directly above, below and alongside the ads. We considered the headlines and text were not sufficient to make clear that they related to advertising content. We further considered that because the layout exactly replicated the layout of short articles which related to editorial content, readers were highly likely to understand that the content in the short articles, and the content to which they linked, was editorial content in its entirety. We concluded ads (a), (c), (f), (h) and (j) were not obviously identifiable as marketing communications.
We then considered whether the ‘long-form’ articles made sufficiently clear that they were advertising.
Ads (b), (d), (g), (i) and (k) all included text above the main body copy which stated “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 / MailOnline] may earn an affiliate commission”. The text was in italicised font that was slightly smaller than the font used in the body text. We considered the placement and presentation of the text was sufficiently prominent that readers would not have overlooked it. However, we considered the wording was not sufficient to make clear that the content was advertising in its entirety. The wording 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 for the reasons stated above. Additionally, its focus on the affiliate links did not make clear that the entire webpage was advertising. We also considered that the phrasing that the MailOnline “may earn an affiliate commission” was ambiguous and confusing, because it suggested that they might not receive any payment when, barring errors in the administration of the affiliate arrangement, they would receive commission for purchases made via the links. We noted that after the ads were seen, the wording was amended to state “MailOnline will earn an affiliate commission”, which we considered addressed that ambiguity. However we considered the updated wording still did not make clear that the content was advertising in its entirety.
We also considered that additional features of the ‘long-form’ articles gave the impression that they were primarily, if not in their entirety, editorial: the overall appearance and layout of the webpage, which strongly resembled the appearance and layout of MailOnline editorial articles; the presence of a box partway through the copy which gave readers the opportunity to “SHARE THIS ARTICLE” on Facebook or view “RELATED ARTICLES”; and text at the bottom of the content stating “Share or comment on this article” followed by the headline of the ad, or similar wording.
We concluded that ads (a) to (d) and (f) to (k) were advertising in their entirety, and that because they were not obviously identifiable as such and did not make clear their commercial intent they breached the Code.
On that point, ads (a), (b), (c), (d), (f), (g), (h), (i), (j) and (k) breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
5. Upheld
Ad (e) was a box that appeared partway down an editorial article about Molly-Mae Hague. We first considered whether the entire content of the box was advertising, or just the affiliate links.
The left-hand side of the box featured a cropped version of a photo that appeared directly above in the editorial article, of Ms Hague wearing a bodysuit blazer. We considered that, and the heading “Make like Molly-Mae in a bodysuit by Mugler” set the context that the box contained information about Ms Hague’s fashion style and how it could be achieved by readers. The text referenced some of the brands Ms Hague was known to wear, and highlighted that in the photo she was wearing the Mugler bodysuit blazer and Tom Ford pyjama pants. It stated that the bodysuit was no longer available “[…] but you can click the product image to take a closer look and keep your fingers crossed for a restock”. It then stated “In the meantime, channel the style icon with the help of our carousel. While you’re there, why not complete Molly’s look with her Tom Ford pants …”. That section of the box featured a “Shop for more>” link at the top, and the hyperlinked button “Visit site” under an additional image of the bodysuit. The carousel underneath was headed “…NOW GET ONE LIKE IT” and featured four products: Tom Ford pyjama pants, a Maniere De Voir bodysuit blazer, a Dion Lee bodysuit blazer and a Misspap bodysuit blazer. The products were followed by “Visit site” buttons that featured affiliate links.
We acknowledged that at the time the ad was published the Mugler bodysuit blazer had sold out. However, we noted the text encouraged readers to check whether it was back in stock, and that the “Visit site” link was an affiliate link. We understood that if the product came back into stock and readers purchased it by following that link, Associated Newspapers would earn commission. Furthermore, we noted that three of the products in the carousel were bodysuit blazers from other brands, and the fourth was the Tom Ford pyjama pants worn by Ms Hague in the photo and mentioned in the body text. We considered the text was focused on the overall look worn by Ms Hague in the photo and that although the outfit she was wearing was designer, she also often wore more affordable brands. We considered the focus of the text was therefore on promoting the various product options available through the affiliate links and that the box was, therefore, advertising in its entirety and that it was not editorial content.
We then considered whether the box was obviously identifiable as a marketing communication and made clear its commercial intent.
When the ad was first seen, text in small grey font placed between the body text and the carousel and aligned to the right-hand side of the box stated “MailOnline may earn commission on sales from these product links”. That statement was later reworded to state “If you make a purchase using links on this page, MailOnline will earn an affiliate commission” and was realigned to sit to the left-hand side of the box, under the photo of Ms Hague wearing the bodysuit blazer. As above, we considered the wording “MailOnline may earn commission” in the initial version of the statement was ambiguous and confusing, because it suggested that they might not receive any payment when, barring errors in the administration of the affiliate arrangement, they would receive commission for purchases made via the links. We acknowledged that the updated version of the statement addressed that ambiguity. However, we considered the focus of the wording in both versions was specifically on the affiliate nature of the links, and did not make clear that the entire box was advertising. We additionally considered that the placement of both versions of the statement partway down the box was not sufficient to make clear that the box was advertising in its entirety.
We concluded that ad (e) was advertising in its entirety, and that because it was not obviously identifiable as such and did not make clear its commercial intent it breached the Code.
On that point, ad (e) breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
Action
The ads must not appear again in the form complained of. We told Associated Newspapers Ltd t/a MailOnline to ensure that affiliate marketing communications were obviously identifiable as such and made clear their commercial intent, if not obvious from the content. We told them to ensure that ‘short articles’ on the MailOnline homepage which linked to ‘long-form articles’ that were advertising in their entirety must make clear the content to which they were linked were ads. We also told them to ensure that ‘long-form articles’ that were advertising in their entirety were clearly labelled as such.
