Affiliate Marketing Attorneys: Why You Need One – Media, Telecoms, IT, Entertainment


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Affiliate Marketing Attorneys: Why You Need One

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Affiliate marketing networks (as well as internal affiliate
marketing programs) present businesses with an effective means of
leveraging a large pool of independent marketers (“publishers” or “affiliates”),
without the need to expend resources locating and negotiating
separate contractual arrangements with each of those
publishers.  By nature, affiliate marketing involves working
with a large volume of publishers.  As such, it is essential
that businesses advertising through use of affiliate programs (or
“advertisers”) ensure that the contractual provisions
applicable to participating publishers provide ample legal
protections and limitations of liability. Experienced affiliate
marketing attorneys can help advertisers ensure that they secure
key contractual terms in their agreements with third-party
affiliates. 

Can an Affiliate Network Contract Protect My Business? 

Affiliate Marketing Contracts

Where a prospective advertiser engages with an existing
affiliate marketing network, in almost all circumstances, that
affiliate network already has a standard contract that publishers
are asked to execute.  Advertisers should ensure that such
publisher agreements adequately protect them and, where necessary,
negotiate additional terms via an addendum or a separate and
binding campaign terms document.  In addition, where a
business wants to establish its own affiliate program, a
comprehensive publisher agreement will need to be created from
scratch. 

Below are some of the key provisions that advertisers must
ensure are contained in their affiliate marketing agreements with
prospective publishers:

  • The affiliate marketing agreement should establish, in advance,
    which marketing methods publishers may employ when promoting
    advertiser’s products, such as traditional telemarketing, email
    marketing, social media marketing and SMS text message
    marketing.
  • The affiliate marketing agreement should require publishers to
    represent that their respective marketing activities comply with
    applicable laws, rules and regulations including, without
    limitation, the Telephone Consumer Protection Act
    (“TCPA”), the Telemarketing Sales Rule (“TSR”)
    and the CAN-SPAM Act of 2003, as amended
    (“CAN-SPAM”).
  • The affiliate marketing agreement should require that
    publishers exclusively use creative material that is either
    provided or pre-approved by the advertiser.
  • The affiliate marketing agreement should require that
    publishers remain solely responsible for all marketing activities
    engaged in on the advertiser’s behalf. 

Avoiding Affiliate Marketing Risks, Hire an Affiliate Marketing
Attorney

Without implementing strict contractual obligations that require
publishers to act responsibly, both in accordance with the campaign
parameters established by the advertiser and in compliance with all
applicable marketing laws, there is an increased likelihood that
the advertiser may suffer significant legal liability and/or
reputational harm.  Given the stakes involved, it is
recommended that businesses retain qualified affiliate marketing attorneys to ensure
that any contract is drafted, amended and/or revised, as necessary,
in order to ensure proper regulatory and legal protection.

Please note that this is only a brief overview of some of the
legal issues surrounding publisher-related affiliate marketing
contracts.    

Similar Blog Posts:

Affiliate Marketing Agreements: Don’t Get
Stuck in the Middle

Affiliate Marketing Network Held Liable for its
Publishers’ Deceptive Content

Deceptive Marketing Practices, Lead Generators and
the FTC

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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