A CJEU ruling could have huge implications for affiliates once they have conducted content reviews.
The Court of Justice of the European Union (CJEU) has ruled that as soon as affiliates conduct manual or substantive reviews of creator content or meta data, it has gained “constructive knowledge” of the creator’s content.
This means that affiliates will lose their “neutral intermediary” status as soon as it approves a creator for an affiliate tier, brand deal, or revenue-share model.
Under EU law, affiliates, until recently, had a protected status and could only be held directly liable for affiliate fraud if they were actually involved in creating deceptive ad copy, or otherwise engaging in harmful practices.
‘Good samaritan’ provisions in the Digital Services Act shielded tech firms and affiliates from civil liability for user-posted content on the basis they were passive hosts, and they remove illegal content when properly notified.
Just as tech and social media platforms are losing their neutral intermediary status, so too are affiliates.
What this means for affiliates
Going forward, if an affiliate partners with an e-commerce platform to promote knock-off, fraudulent, or unsafe products – including uncertified electronics, cosmetic products, or misleading health claims (such as miracle supplements), then they will be at risk of regulatory action.
If the affiliate network vetted the merchant, then it can be held co-liable for the consumer protection violations.
Richard Dennys, chief executive of Mr Gamble wrote in a LinkedIn post: “For years, brands let influencers produce whatever content they wanted as long as sales links were tracked.
“Now, if a brand or platform’s affiliate team conducts pre-approval reviews of an influencer’s channel to onboard them into a tiered commission structure, the brand is legally on the hook for what that influencer says in their videos.”
This also applies to misleading price claims. From now on, ad networks which review and approve ‘price drop’ and countdowns to instill a sense of urgency (such as, ‘buy now before prices go up’) can also be penalised as well as the e-commerce platform.
