ASA ruling underlines gambling operators’ responsibility for Advertising Code compliance by their affiliates

Affiliate marketing has once more come to the fore today (10 November 2021) with a ruling by the Advertising Standards Authority against 888 UK Limited t/a (that you can download below), in which it has told 888 to ensure that:

  1. it holds adequate evidence to substantiate claims made in ads for 777, even when placed by affiliate marketers and
  2. future advertising for 777 does not misleadingly imply that offers are time-limited, for example by using a countdown clock, if that is not the case.

888 had sought to argue that:

  • it had a policy in place with third-party publishers who created marketing materials for it, which prohibited them from using agencies to create ads which had not been provided by 777 itself
  • in this instance, the third-party publisher had used a creative which had not been designed or approved by 888, and had been posted without its knowledge or approval.

777 said that:

  • it had identified the ad itself on 2 July 2021, and had instructed the third-party publisher to remove it on the same day
  • following the identification and removal of the ad, it had suspended all campaigns with the relevant publisher until further notice
  • if it decided to resume working with the publisher in the future, it would do so subject to a review and monitoring process of any potential campaigns’ promotional materials.

Upholding all three complains in relation to this ad, the ASA stated that although the ad had been published by an affiliate marketer without the approval or knowledge of 888 (in breach of the agreement between the parties), as the beneficiary of the marketing material, 888 was responsible for the ad and for responding to the ASA investigation, adding:

It’s important to remember that, because affiliate marketing falls within the scope of the CAP Code, all of the relevant rules will apply to the content and it therefore should not, amongst other things, mislead materially or cause serious or widespread offence.

This should come as no surprise given:

  • that in its ‘Online Affiliate Marketing’ advice (that you can also download below), the ASA has said that: “advertisers should bear in mind that allowing their affiliates to have free rein over the content of ads does not excuse them from the responsibility of ensuring that the advertising is compliant with the CAP Code” and
  • previous ASA rulings that “both the business and the affiliate marketer are responsible under the Code notwithstanding the fact that the ads may have been created solely by the affiliate rather than by the business themselves”.

Links to those rulings mentioned in the ASA’s above advice are set out below:

The ASA has added in that advice that:

As primary responsibility for observing the Code falls on marketers, promotions run by affiliates that do not adhere to the Code will be problematic (Flamingo Intervest Ltd t/a, 27 February 2013).

Relying on affiliates to correctly target ads does not mean that the brand itself relinquishes responsibility for the promotion of its product. A gambling ad that was mistakenly sent by an affiliate marketer to a child was complained about and investigated. Although the brand contended that the affiliate marketer was responsible for the administrative error that caused the child to receive a gambling promotion, the ASA upheld the complaint and the brand was named in the ruling (Club Website Ltd, 8 January 2014).

A similar principle applies under the Gambling Commission’s LCCP Social Responsibility Code provision 1.1.2 that provides as follows:

1. Licensees are responsible for the actions of third parties with whom they contract for the provision of any aspect of the licensee’s business related to the licensed activities.

2. Licensees must ensure that the terms on which they contract with such third parties:

(a) require the third party to conduct themselves in so far as they carry out activities on behalf of the licensee as if they were bound by the same licence conditions and subject to the same codes of practice as the licensee

(b) oblige the third party to provide such information to the licensee as they may reasonably require in order to enable the licensee to comply with their information reporting and other obligations to the Commission

(c) enable the licensee, subject to compliance with any dispute resolution provisions of such contract, to terminate the third party’s contract promptly if, in the licensee’s reasonable opinion, the third party is in breach of contract (including in particular terms included pursuant to this code provision) or has otherwise acted in a manner which is inconsistent with the licensing objectives, including for affiliates where they have breached a relevant advertising code of practice.

Download article PDF: ASA ruling - 888 UK Ltd - 10.11.21