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Distinction of merchant content and affiliate content

In the mid zero-zeros decade there was a confusion in the affiliate marketing business where companies in the insurance and finance business were worried about content-based websites and the risks associated with freedom of speech. Some of the merchants adopted an open-minded policy on this and trusted affiliates to say reasonable things and trusted the FSA to be reasonable about whom to blame if there were problems. Some merchants took a more panicky position on the same issue and considered a "worst case scenario" where potentially the finance/insurance company could be punished by the FSA for something that a free speaking reviewer had said.

The panicky viewpoint is not as stupid as it initially sounds, although it is irrational. There is currently (2007/04) no case-law regarding affiliates saying things about finance-sector companies, so it could be argued that there might be trouble ahead.

However, in my opinion most of the problematical nature of the situation comes not from this conceivable but absurd piece of logic, but instead from an emotional response based on traditionalism and the break from traditionalism which Internet affiliate marketing allows. In the past, big companies had become accustomed to being able to control what is being said about them. This is no longer true, and it is understandably uncomfortable for them. However, it's a fact of the modern Brave New World which is the reality of the Internet. Nowadays, instead of transmissions being controlled by the state and by big business and being expensive, anyone can now have their own virtual soap-box and speak freely for better or worse and instead of having merely a few dozen people musing on their comments in the vicinity of Speakers' Corner, the world can hear! This is the fact about having your own website

To draw an analogy, supposing there was a tyrannical dictatorship enforcing a medieval feudal system where no-one was allowed to speak any criticism of the unelected ruling elite, and then suddenly there was a newfangled invention which forced social reform where there was nothing the rulers could do about the proliferation of jesters saying amusing things about the powers-that-be, it would indeed be a bit uncomfortable for those powers, especially at the start, and they would initially instinctively feel they should re-assert their traditional powers by calling for the executioners to put to death anyone who dared speak any heretical treason against their totalitarian rule.

Moving to the current state of the financial market and affiliate marketing, I feel that some (though not all) of the big companies in the finance/insurance sector are in the "off with that person's head!" style of management and haven't yet grasped the fact that in this new world the ghosts of decapitated critics will continue to haunt them and to put on amusing jestorial shows about them.

There is a much better solution, which is reform. That is, moving from an absolute rule model of marketing to a more libertarian model. Well surely that's not compatible with big business, is it? Well, the Movie Companies seem to cope with it! MGM, FOX, Disney, etc put vast corporate budgets into their products which critics may write about and say good or bad things about. Yet, these corporate giants do not fear some "F.S.A. (Film Services Authority)" coming along and saying "You [movie company] are hereby charged with a critic saying that your movie was too short at only 89 minutes long and upon checking it was found to be 123 minutes long including the breaks for popcorn and icecream and the time it took the projectionist to change the reels". The point is, regardless of the quality or length of the movie, it's not the movie maker's fault if a critic says something about it!

This is where the concept of distinction comes in. There is a big difference between what a bank says in their own words and what a reviewer then says about them. Let's show off an example (all hypothetical) to demonstrate the point:

Well now I'm an affiliate of the Flibbertigibbet Bank I thought I'd go along and see what the place was like, so I went up town and saw their building was all crumbly and dilapidated and propped up with builder's acro poles to stop it falling down, but on the outside there was a nailed-up sign that said:

"Welcome to the Flibbertigibbet Bank. The bank that keeps your money safe and pays you healthy interest but doesn't waste money on expensive buildings and nice carpets. Plus, if you open an account we will give you free FRUIT and a home insurance policy".

So I went into the building and noticed how the wallpaper was all manky and mouldy and peeling off with damp, and the lamps on the ceiling were flickering on and off, and I thought "this really stinks", but then some helpful person jumped out from behind a battered old desk and gave me a few bananas and an apple. So I said "Thanks! I suppose you've got a bargain on home insurance here then too!". And the bank rep said:

"We the representatives of the Flibbertigibbet Bank offer our customers home insurance and free fruit. It is the bank's way of showing that we appreciate customers opening a new bank account here"

I still had my doubts about this, but I had to admit the fruit seemed real enough, and I knew I needed to get a home insurance policy, so I was tempted into opening an account at the Flibbertigibbet Bank. ... That was all twelve months ago now, and I can tell you that everything went really well and I've had quite a lot of free fruit from the bank and it's true they insured my house and paid up when my fishtank exploded, and all I had to do was to trust them and invest some of my affiliate money in their bank account, which pays a reasonable rate of interest. I hope they've insured their own building too, because I heard recently that it was in danger of falling down!

OK, that was a curious fictional example, but the point is made. There is a clear distinction between what the affiliate is writing as a critique including personal first-hand experience of the bank, and what the bank is saying. The bank can only be held responsible for its own statements, not those of the affiliate. So, in the case of the bank in the silly example, if the Financial Services Authority turned up at the bank to check the truth of the statements being made, they would not be able to blame the bank for "this really stinks" as the bank never said anything pertaining to the smell within that establishment. However, if the FSA found out that "The bank ... doesn't waste money on ... nice carpets" was in fact a scandalous lie as the bank managers all had their houses fitted with luxurious carpets funded by squandering the bank's customers' money, they would quite rightly apply some justice such as seeing that the money was refunded, or at the very least that the bank's statement was changed to something more like "Your home insurance, bank account balance, and provision of free fruit may be at risk if the bank keeps up payments to carpet fitters". However, the fictional "Flibbertigibbet Bank" was not guilty of this inaccuracy to their advertising, nor to any financial impropriety, and the affiliate quoted their ad precisely, so the FSA has nothing to grumble about, and the bank need have no fear of being held to account for something that the crazy affiliate said.

Strange as it may seem, the idea has a legal precedent in quotations of guard dogs! In the early days of dog warning signs on properties, property owners put up signs that scared off burglars, the wording being "BEWARE OF THE DOG". This was quite good, as it clearly informed the potential intruder that if they trespassed they might get bitten. However, lawyers at some time managed to convince a judge that such a sign actually made the OWNER guilty, as potentially someone foolishly entering the property and being bitten by the dog could take the owner to court and claim that the sign was a confession by the owner that they had a DANGEROUS DOG and was therefore liable to pay the trespasser compensation! In response, owners of property guarded by dogs decided to have different signs, which still conveyed the same message, but did not leave the owner liable to persecution on account of being quoted as having a dangerous dog. The new signs display an artistic representation of a guard dog with the expression "I GUARD HERE". Hence, bitten burglars wishing to litigate against householders have no leg to stand on, whether such a leg be bandaged or not, as the sign is legally the words of the dog. As far as my limited legal knowledge goes, no person has ever been sued because of words alleged to have been said by their dog and quoted on a sign!

Can't you see it? The lawyer for the prosecution questions the house owner in court "Are you stating that your dog has said that it guards your property?". No, that's not allowed as it's hearsay evidence. So then the dog is put on the stand and the intruder's lawyer questions the dog: "Do you claim that YOU guard the aforementioned property and do thereby state that you are a dangerous dog?". The dog (assuming dogs are allowed to speak in court) might conceivably respond "It wasn't me. It was the human that nailed the sign up in the first place, and besides the sign doesn't have MY words on it. Also, that picture of a dog doesn't even look like me! On the sign those words are being spoken by an alsatian whereas I am as you can see a fox-terrier/greyhound mongrel".

I'm no lawyer myself, but even I know that folk (or dogs for that matter) aren't culpable for things that other people (or dogs) say. If they were, the justice could be said to be "rough".

However, I am in favour of "responsibility", not in the sense of liability, but in the sense of dependability and trustworthiness. I run this interesting website and say what I believe to be true. I speak as I find, and I express my honest opinions about that which I've seen. If I am writing a review about a company, I'll tell you what I think, usually good things, but occasionally bad. As the idea is to convey to you an impression of what the company is really like, I might include a quote from the company. If I do, you should easily be able to see the distinction between my own comments and those of the company. Although I don't generally go to the extreme of using entirely different fonts and colours and styles for the different theatrical parts, you can pretty well tell who is talking. With a bit of commonsense and a basic knowledge of grammar and punctuation, you should have no doubt about which words are those of the affiliate and which are those of the company being recommended/denounced/reviewed. Plus, I often include on the page, for the avoidance of doubt "[So-and-So Company] ... featured at Zyra's independent affiliate website".

The FSA are happy about this, so let's see companies in the finance and insurance business being happy about it too.

Update 2012: Let's hope the Everest Double Glazing company starts being sensible!