Ad description
A promotion on the HotUKDeals website www.hotukdeals.com, a website featuring deals uploaded by its users, seen on 17 September 2019, for a luggage set. Text stated “Extra 12% Off Selected Suitcases & Luggage Sets @ Packed Direct-Aerolite Hard Shell Suitcase Luggage SET £68.88 delivered”. Beneath a link titled “Get deal”, the username “millarcat” was shown beside a tick symbol.
Issue
The complainant, who understood that deals were usually uploaded by members of the public but who believed the luggage deal was a paid-for promotion posted by a staff member of HotUKDeals, challenged whether it was sufficiently clear that the promotion was an ad.Response
Pepper Deals Ltd t/a HotUKDeals said that the website featured deals uploaded by users who were members of the public as well as deals uploaded by their staff members who were called ‘editors’. In order to distinguish between a deal posted by a member of the public and a deal posted by an editor, a grey shield symbol was shown next to the editor’s username. If a user clicked on the shield, it changed colour to red, and a pop-up appeared identifying the poster as an editor. Their editors were also identified on the ‘About Us’ page and the FAQs page provided an explanation of an editor’s role. The purpose of the website was to collect the best deals available online and in stores and to put them in one place for people to access. HotUKDeals said it was obvious from the context that they may receive an affiliate fee. They said that their promotions were obviously identifiable as marketing communications, but despite this they had stated on their website how they used affiliate links. For example, the ‘About Us’ page stated that “some threads on HotUKDeals may contain an affiliate link, which will earn the site a commission if the product is purchased” and the FAQ section stated “Our running costs are covered by affiliate fees, which we sometimes earn if a user buys a product they saw on our site. Whether a deal earns commission or not does not influence how we describe it, or the votes it receives on our site.” They explained that the majority of deals were posted by public users. HotUKDeals staff were sent deals by selected retailers and would judge them against a set of standards, leading to the majority being rejected. They could also be rated by their members as ‘hot’ or ‘cold’ without influence from HotUKDeals employees or retailers. They said that posts from all types of users could generate revenue. The ‘Get Deal’ link worked by automatically adding an affiliate link if the affiliate network had one available, and if not then it would be left as a direct link. Even if the link was affiliated, the deal may not generate revenue for HotUKDeals until a user had purchased an item from the retailer. They clarified that the luggage deal in this case did include an affiliate link. They said that since the ASA had contacted them they had amended their website so that it made clear that all deals across the site may generate revenue for HotUKDeals. This was a transparent way of informing users about the commercial model of their website, rather than the inclusion of the tag “#ad”, which they thought would be misleading because it implied that they had been paid in order to post a deal, and wouldn’t have posted it without the payment, which was not the case. They said that they did not know which retailers would be affiliated, and therefore which deals generated revenue. They said that where deals contained affiliate links, the affiliation status, which was mostly controlled by a separate affiliate network, could change over time once the deal had expired, but the link would remain live to help users research previous offers. There were thousands of such deals in their archive.Assessment
Upheld The CAP Code stated that marketing communications must be obviously identifiable as such and that they must make clear their commercial intent, if that was not clear from the context. The ASA understood that the website featured deals that were posted by staff members and members of the public and that some but not all of those deals included affiliate links. This meant that HotUKDeals received commission for any sales generated from users purchasing items via deals posted on the website which contained affiliate links, irrespective of whether the deal had been posted on the website by a HotUKDeals editor or a public user. Those links were directly connected with the supply of goods and were therefore ads for the purposes of the Code. We therefore considered that the commercial nature of the affiliate content should have been made clear to consumers upfront. The ad was a deal posted by a staff member, which included an affiliate link. The information on the page itself did not clearly indicate that the deal was posted by a staff member or contained an affiliate link. In light of this, we considered that the post was not obviously identifiable as an ad. We understood that during the course of our investigation, HotUKDeals had included a disclaimer in small print, beneath the description of the deal on each page which stated that “if you click through or buy, retailers may pay HotUKDeals some money”. They had also included an icon with the text “EDITOR” and a red tick symbol beside the username for deals posted by their staff members. We considered that while the “EDITOR” symbol may have indicated to users that the deal was posted from a staff member, this did not indicate to consumers that the deal contained an affiliate link and was therefore an ad. Additionally, the general disclaimer did not clearly state which particular deal included an affiliate link and it was not in any case sufficiently prominent to readers. We therefore considered that the changes were not sufficient to make their posts obviously identifiable as ads. Therefore, we concluded that in the absence of a clear and prominent identifier beside the affiliate links, such as “#ad”, the links on the website were not obviously identifiable as ads and did not make clear their commercial intent. The ad breached CAP Code (Edition 12) rules 2.1 2.1 Advertisements must be obviously distinguishable from editorial content, especially if they use a situation, performance or style reminiscent of editorial content, to prevent the audience being confused between the two. The audience should quickly recognise the message as an advertisement. and 2.3 2.3 The use of a title, logo, set or music associated with a programme that is broadcast on that medium needs special care. The audience should quickly recognise the message as an advertisement. (Recognition of marketing communications).Action
The ad must not appear in the form complained of. We told Pepper Deals Ltd t/a HotUKDeals to ensure that in future affiliate links were obviously identifiable as marketing communications, for example by including a clear identifier such as “#ad”, and made clear their commercial intent prior to consumer engagement.
