Affiliate Disclosure

ebay Partner Network has very good information and FAQ for its Australian partners. Much of the information can be used by publishers for all affiliation networks.

Australia

Advertising in Australia is partly self-regulated by the industry via the Ad Standards, and partly regulated by both the Australian Competition and Consumer Commission (“ACCC”) under the Australian Consumer Law (“ACL”), as well as the Australian Communications and Media Authority (“ACMA”) under the Spam Act.

AANA and the Code

The Australian Association of National Advertisers (“AANA”) is the peak industry body for advertisers in Australia. The AANA has published various codes for different types of advertising, including an overarching Code of Ethics (the “Code”), to ensure that advertisements and other forms of marketing communications are legal, honest, truthful and have been prepared with respect for human dignity, an obligation to avoid harm to the consumer and society, and a sense of fairness and responsibility to competitors.

The Code applies to advertising and marketing communications published or broadcast in any medium over which the advertiser has a reasonable degree of control, which promotes a product, service person or organization. The Code specifically states that advertising shall be clearly distinguished as such, and an accompanying practice note provides further guidance for influencer and affiliate marketing.

ACCC and the ACL

The ACL requires transparency in advertising and marketing practices in Australia, because it is illegal to engage in conduct that is misleading or deceptive, or is likely to mislead or deceive. Misleading and deceptive conduct can relate to:

how you advertise your goods or services;
how you describe goods or services (including in giving a review); or
a failure to disclose a commercial relationship

This means that anyone engaged in affiliate marketing in Australia must clearly and conspicuously disclose that they may receive compensation for their promotion of third-party products or services, and disclose if their content contains affiliate links and that they earn a commission if users purchase using those links.

ACMA and the Spam Act

Finally, ACMA regulates the Spam Act which prohibits affiliates and brands from sending marketing (including affiliate links) to customers without their specific consent to receive such marketing communications, and requires both that you clearly identify who authorized the message (as well as that a clear and simple unsubscribe button be included in every marketing communication).

The above applies to all ePN Partners based in or conducting business in Australia, or marketing to Australian consumers, and applies to any format of affiliate marketing activity, including:

Mobile apps, websites, or blog posts with promotional content or ePN links
Youtube, TikTok, Facebook, Instagram, or any other social media promotion
Podcasts, chat boards, Bulletin Board System, image dumps, apps, redirected pages
Any media whatsoever (including email communications) that contains a relationship where an ePN Partner may be compensated by a third-party or merchant in exchange for their referral to the third-party sales pages

If you are an Affiliate Marketing Manager, or Influencer Network Manager, these rules apply to your entire network, so long as affiliate links are being used to generate revenue.

Both ePN Partners and eBay face potential complaints via the Ads Standards Board when an ePN Partner fails to disclose their affiliate marketing relationship with eBay to individuals who view and may click on their affiliate links, and could face legal proceedings, regulatory investigations and/or fines and other legal consequences if found to have engaged in misleading or deceptive conduct under the ACL, or conduct in breach of the Spam Act.

eBay recognizes that affiliate marketing links are placed in a variety of formats and ever-evolving locations, some of which may not be specifically addressed by the relevant legislation or guidance materials.

We encourage you to review the Code (together with the other codes published by AANA as relevant to you and the practice note), ACCC guidance for advertising and promotions, and ACMA guidance for avoiding spam, and should you feel it appropriate, consult with your own legal counsel.

Also, while not specifically related to disclosures, the Australian Influencer Marketing Council (“AIMCO”) has also created a Code of Practice for the influencer marketing community, to protect all concerned from reputational risk and legal action by not complying with the ACL.

At a high level, we have set out below a summary of the requirements set out in the Code.

Disclosure Must Be Clear

While there is no absolute requirement that advertising or marketing communications have a label, it must be clear to the audience that it is advertising.

When using written media with a link of any kind, consider using one of the following statements (or something similar):

“This site contains affiliate links for which I may be compensated”
“As an eBay Partner, I may be compensated if you make a purchase”

In written formats that are limited by size, such as X or a small banner link, consider using one of the following hashtags (or combination): #ad, #advert, #advertising, #brandedcontent, #paidpartnership, #paidpromotion, #sponsored, #sponsoredcontent. Less clear labels such as #sp, #spon, #affiliate, #collab, #thanksto, or merely mentioning the brand name, may not be sufficient to clearly distinguish the post as advertising.

When using voice or video promotion, a similar statement must be made during your video or audio presentation, whether written in bold letters (video) or said aloud for the audience (video or audio).

Disclosure Must Be Prominent and Proximate (i.e. Easily Seen and Close)

Disclosure must be easy for any reasonable visitor to your content to find.
Fonts should not be unreasonably small
Disclosure should be close to the affiliate link, e.g.:
Directly preceding the affiliate link; or
Said aloud in a video or audio presentation at a point near where the link is posted or displayed
The label or hashtag(s) should be clearly identified and prominent, not hidden at the end of a lengthy caption or in subsequent comments
For links that appear in mobile applications, the disclosure needs to be “above the fold”, which means it is visible once the page loads without needing to scroll. It should not be located at the bottom of a field of text, or in small print tucked into a menu

The overall message of an advertisement or marketing communication cannot be misleading – so, even if you have a disclosure, if the overall message is such that it could mislead or deceive a consumer, then a single or small disclosure may not be enough.