Compliance plays a critical role in the operation of any digital marketing program. Those in the performance marketing ecosystem cannot contract away legal responsibility by charging a third-party with such responsibilities.
The product/service provider, the party that facilitates the dissemination of promotional materials, and the party that actually disseminates promotional materials are potentially subject to liability for deceptive content.
What follows is intended to address a handful of issues pertaining to network credentialing of third-party affiliates.
Increasingly, third-party product/service providers in high-risk verticals are reluctant to work with networks that are unable to demonstrate an ongoing commitment to monitoring unfair and deceptive marketing practices, vetting third-party marketing partners and implementing comprehensive compliance processes.
As affiliates move freely between networks, abusive affiliates will seek out the relative weaknesses amongst networks. From a compliance standpoint, a network’s compliance protocols are only as strong as it weakest link.
A few basic considerations:
- Develop and implement responsible marketing contracts that are designed to ensure affiliate compliance with applicable laws/regulations and protect consumers;
- Develop, implement and adhere to comprehensive credentialing questionnaires, written compliance policies and guidelines;
- Develop and implement procedures that ensure affiliates responsibly adhere to applicable legal/regulatory requirements, including those that pertain to privacy and the use of consumer data;
- Ensure that affiliates assent to all policies and guidelines is a precondition of doing business on the network. Re-circulate and update periodically;
- Resist attempts by affiliates to dilute internal policies and material contract provisions, such as commission forfeiture in the event of a breach;
- Periodically audit and consistently discipline affiliates (e.g., suspension, termination and commission forfeiture). Take proactive steps to discover violations and ensure compliance. Reactive investigations and remedial measures are not enough, alone;
- Conduct ongoing, periodic scheduled reviews of existing campaigns;
- Retain accurate records of all credentialing, monitoring and remedial measures taken against affiliates that fail to adhere to established policies, guidelines and/or contractual representations and warranties;
- Document how many systematic audits are conducted, as well the number of denials and re-submissions. Track what the violations were and in what verticals;
- Design and implement measures to reasonably ensure that affiliates removed from the network are not re-admitted, and that affiliate applications are unique and accurate;
- Design written protocols to meaningfully address affiliates that have been removed from the network and attempt to regain access by joining a sub-affiliate network;
- Vet affiliate policies regarding sub-publishers, and how sub-publishers are monitored and disciplined;
- Inquire into affiliate internal compliance protocols;
- Design, implement and document training provided to new and existing compliance personnel, sales personnel and affiliate managers regarding internal advertising guidelines and applicable laws/regulations;
- Be prepared to demonstrate to marketing partners and regulatory authorities that compliance personnel possess the requisite experience and cannot be overruled by someone with an account or publisher management function. Compensation should never be tied to program performance; and
- Utilize available compliance technological tools and services.
Increasingly, product/service providers and lead purchasers possess their own internal policies with respect to credentialing networks, and look to work with networks that consistently take concrete actions when serious violations occur.
The failure to implement clearly defined and documented compliance protocols will be perceived by marketing partners and regulatory authorities as an incentive to be non-compliant. Conversely, responsibly vetting affiliates can go a long way toward building healthy business relationships while thwarting a deceptive advertising investigation or enforcement action.
Contact an FTC advertising defense, compliance and investigation lawyer to discuss the implementation of protocols designed to credential affiliates, product/service providers and lead purchasers participating on your network, or if your company is the subject of a regulatory investigation.
Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
HINCH NEWMAN LLP. ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future