Overview of the Federal Trade Commission's Disclosure Laws
In 2010, the Federal Trade Commision (the FTC) revised their rules and guidelines to reflect the ongoing boom in E-commerce. Among the revisions was a requirement for “clear and conspicuous” disclosure when a blog or other website displays an advertisement that might not be obviously distinguishable from the website's normal content. This includes, among other things, for-profit network affiliate links.
For example, Amazon.com has a popular network affiliate program called Amazon Associates. It works like this: suppose I have a website that reviews widgets. If I place a link on my website to a page on Amazon.com that sells widgets I, as the website owner, would receive a small portion of any sales that are funneled to Amazon.com through my link. This creates a mutually beneficial financial relationship between my widget review site and Amazon.com. Per the FTC, this financial relationship must be disclosed in full to any consumer before he or she clicks on any network affiliate link.
The rules, guidelines and examples of what the Financial Trade Commission considers to be adequate disclosure of these financial relationships are provided in the following three documents:
http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf
http://business.ftc.gov/documents/bus71-ftcs-revised-endorsement-guideswhat-people-are-asking
http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf
Reading through these documents is instructive. In short, the Federal Trade Commission requires that financial arrangement between websites and companies must be made explicit and obvious. Of special note is a section of the “Revised Endorsement Guides” that deals with affiliate marketer links:
“I’m an affiliate marketer with links to an online retailer on my website. When people click on those links and buy something from the retailer, I earn a commission. What do I have to disclose? Where should the disclosure be?
Let’s assume that you’re endorsing a product or service on your site and you have links to a company that pays you commissions on sales. If you disclose the relationship clearly and conspicuously on your site, readers can decide how much weight to give your endorsement. In some instances, where the link is embedded in the product review, a single disclosure may be adequate. When the product review has a clear and conspicuous disclosure of your relationship – and the reader can see both the product review and the link at the same time – readers have the information they need. If the product review and the link are separated, the reader may lose the connection.
As for where to place a disclosure, the guiding principle is that it has to be clear and conspicuous. Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn’t good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.”
It should also be noted that while the affiliate's share of a single sale is small, popular websites can still parlay these programs into substantial sums of money. In fact, Nick Denton, the owner of Gawker Media, issued a memo in 2013 in which he boasted that Gawker Media could make many thousands of dollars from a single affiliate link. Ad Age even wrote an article about the success that Gawker Media was enjoying with with native advertising and affiliate links:
http://adage.com/article/digital/memo-gawker-expects-10-revenue-e-commerce-2013/239355/
How to Spot an Amazon Associate Affiliate Link
Now for a brief but important digression: in the absence of full disclosure, how can a consumer spot an Amazon Associate affiliate link? This can be done by inspecting the complete URL of the link. An Amazon Associate affiliate link has the following structure:
http://www.amazon.com/dp/productidentifierhere/?tag=unique_associate_id_here
Note that this link does not actually go anywhere. In keeping with our fictitious widget review site, an affiliate link might look like this:
http://www.amazon.com/dp/1234567890/?tag=widgetreviews-20
For a more detailed explanation of how Amazon Associate affiliate links work, visit the Amazon Associates section at Amazon.com and view the page on link formatting.
How Amazon.com Links are Handled on Gawker Media Websites
Gawker Media runs some of the most popular websites in the world. These include sites like Gizmodo, Kotaku, Jezebel, Lifehacker, Deadspin and the eponymous Gawker.com.
Literally thousands of reviews, news articles, editorials and informational blog posts are hosted on Gawker Media's family of websites.
Given the consumer and tech-driven nature of many of Gawler Media's websites, it should come as no surprise that many of their articles mention Amazon.com or products that can be purchased through Amazon.com. In addition, a careful search for Amazon.com links found in Gawker Media websites returns many hundreds of results and perhaps more.
Many of these Amazon.com links and articles are centered around Gawker Media's “Commerce Team”. The “Commerce Team” finds “deals” which are then offered to visitors on their website. As you might expect, any deals that involve Amazon.com are embedded with Gawker Media's affiliate information. Presumably, Gawker Media receives part of every sale that is funneled through these links. This is (broadly speaking) a type of native advertisement, that is, an article that might appear to a casual viewer of a website as normal content on the site but is actually a for-profit posting. This is not illegal, provided the website in questions disclose this to the consumer.
And, indeed, articles from the “Commerce Team” do have a disclosure statement at the bottom of the post. Whether or not these statements meet the Federal Trade Commissions' criteria for adequate disclosure is a matter which will be discussed later. But, at the very least, Gawker Media posts some kind of disclosure notice for “Commerce Team” articles.
However, a careful inspection of Gawker Media's websites reveals the following: it is not only the Amazon.com links found in “Commerce Team” posts that are being embedded with Gawker Media's affiliate information, but in fact nearly all Amazon.com links site-wide are embedded with affiliate tags. This includes links found in product reviews, in news articles, in general blog posts, in Tweets, in images, and even in links found in the reader comments sections.
Affiliate Links Embedded into Product Reviews, News Articles and Other Blog Posts
Here is an archived version of a Gizmodo article posted on 10/27/14 entitled “Fire TV Stick vs Chromecast vs Roku Stick: Streaming Dongle Showdown”:
https://archive.today/D63Sh
This is ostensibly a review comparing Chromecast, Roku and Amazon's Fire TV Stick. But look at the links “$30 voice remote” and “$40 game controller”. Both of these links are embedded with Gawker Media's Amazon affiliate information. If a consumer clicks on either of these links, he or she is taken to Amazon.com pages where both of these products can be quickly and conveniently purchased. And, since Gawker Media's affiliate information is embedded into those links, Gawker Media presumably receives a share of the sale. But look at the article again. It is a review, not a “Commerce Team” posting. And there is no disclosure whatsoever that Gawker Media might profit from the links contained on this page. In essence, this review is really a (type of) advertisement and should be disclosed as such.
The Federal Trade Commission makes it quite clear in their guidelines that affiliate links constitute a financial relationship between a website and the fulfillment company and that this financial relationship must be “clearly and conspicuously” disclosed to a consumer. Failure to do so is a serious breach and could result in action by the Federal Trade Commission.
But perhaps the Chromecast review was one-off accident and not a pattern of behavior on the part of Gawker Media. But such an explanation seems rather implausible since even a relatively brief examination of Gawker Media websites reveals a great many other product reviews, news articles and blog posts that are embedded with affiliate information:
Gizmodo 10/07/14 Lego Creator Aviation Adventure Affiliate link at bottom of post.
https://archive.today/OsnzV
Gizmodo 10/2014 Kindle Voyage Review “$100 Paperwhite” link is an affiliate link.
https://archive.today/pX4XW
Kotaku 10/10/14 Cost of Nintendo’s Amiibo Figurines “Amazon” link is embedded with affiliate information.
https://archive.today/aznFw
Gizmodo 10/24/14 My First Kindle “Kindle” link is embedded with affiliate information
https://archive.today/eBxUF
Gizmodo 10/10/14 Lego Exo-Suit back in stock on Amazon “Amazon” link is embedded with affiliate information
https://archive.today/g74N2
LifeHacker 10/18/13 How to Use Amazon Glacier “Amazon Glacier” link is embedded affiliate information (yes, you can use affiliate links for Amazon’s AWS services, I checked).
https://archive.today/oClk2
Gizmodo 11/6/14 Amazon's Echo Might Be Its Most Import Product In Years “$100” is an affiliate link.
https://archive.today/lw5z0
Gizmodo 10/27/14 Amazon's New Chromecast Competitor Is Just $20 Until Wednesday “Amazon just announced” is an affiliate link.
https://archive.today/e46L1
Gizmodo 8/28/14 Blog post by Leslie Horn “Amazon Instant Video” and “Amazon” links are affiliate links
https://archive.today/4LcZC
Gizmodo 8/6/14 NYC, Philly, DC and More Can Get Same-Day Amazon Deilvery Now “Amazon” link is an affiliate link
https://archive.today/Jzuei
Gizmodo 7/8/14 Kindle Unlimited Is Here : Read As Much As You Like For $10 a Month “Kindle Unlimited subscription service” is an affiliate link.
https://archive.today/4gtbr
Gizmodo 6/23/14 Yes! You Can Buy a Waterproof Kindle Paperwhite “the waterproof cases” is an affiliate link.
https://archive.today/t2hoq
Lifehacker 11/4/14 Amazon Gives Unlimited Photo Storarge to Prime Customers “Amazon Prime Photos” is an affilate link.
https://archive.today/tzi3l
Lifehacker 9/24/14 Most Popular Place to Buy Used Games and Consoles:Amazon “Amazon” is an affiliate link
https://archive.today/BrCNO
Lifehacker 8/26/14 Amazon's Used Textbooks Are Consistently Cheaper Than Other Retailers “which is free for student for the first six months” is an affiliate link.
https://archive.today/lUpXW
Jezebel 12/20/13 There's More Where This Disgusting, Hilarious Kleenex Review Came From “this Amazon review” is an affiliate link.
https://archive.today/umqn1
Gawker.com 11/7/2014 The Very Best TV Series to Stream This Weekend “Broad City (Amazon Prime”) is an affiliate link.
https://archive.today/bz1gA
Gizmodo.com 12/12/12 Every Kindle Fire Is on Sale Today – If You're a Mom “a Kindle Fire”, “7-inch Kindle Fire HD”, “8.9-inch big brother”, and “free to join” are all affiliate links.
https://archive.today/oL0Rc
Gizmodo.com 5/19/14 How to Find the Perfect LED Flashlight “ITP A3 EOS Rev 2” , “generic, Chinese-made thing” and “Genix Headlamp Band” are all affiliate links.
https://archive.today/Ov3A5
Lifehacker.com 3/29/13 Get to Know the DIY Project All Star Tools This Weekend “a soldering kit” and “$20 board” are both affiliate links.
https://archive.today/bjMuR
And none of these examples contain any kind of affiliate disclosure whatsoever. There may very well be many more examples to be found. I simply stopped once I had collected twenty.
Kinja And Affiliate Links
An explanation of how seemingly all Amazon.com links found on Gawker Media's websites end up being embedded with affiliate information - even if that link is in a product review, news article, blog post, Tweet or reader comment - might be found in the following Digitimes article date 10/14/14:
https://archive.today/RJMtL
The relevant section of the article is as follows:
“All this happened somewhat serendipitously. Gawker Media first started using e-commerce links on Gizmodo, its gadget site. Gawker was using its publishing platform Kinja to surface relevant links within articles. Once Denton realized that Kinja could also be used to plug relevant e-commerce links into posts they began to appear regularly on Gawker’s other blogs like car-focused Jalopnik, gaming site Kotaku and Lifehacker."
Kinja is the proprietary content management system created by Gawker Media. It is used on Gawker Media's entire family of websites. It is plausible then that Kinja or a component of Kinja is what embeds seemingly all Amazon.com links on Gawker Media websites with the affiliate information. While this is presumably profitable for Gawker Media, it conveniently ignores the FTC requirements in regards to full disclosure of affiliate links. And the Federal Trade Commission is clear that websites must provide this disclosure to consumers or face possible sanctions. Gawker Media owes the public an explanation of why undisclosed, for-profit affiliate links appear in many of their products reviews, news articles, blog posts and other articles found on their websites.
Affiliate Disclosure and Tweets
We already know that websites must “clearly and conspicuously” disclose affiliate links to their readership. But what about on sites like Twitter, where space is at a premium? As usual, the FTC has issued guidelines to address this. Again, from the “FTC Staff Revises Online Adverting Disclosure Guidelines”:
– begin quote --
● Use disclosures in each ad. If a disclosure is required in a space-constrained ad,
such as a tweet, the disclosure should be in each and every ad that would require
a disclosure if that ad were viewed in isolation. Do not assume that consumers will see and associate multiple space-constrained advertisements. Example 16
● Short-form disclosures might or might not adequately inform consumers of
the essence of a required disclosure. For example, “Ad:” at the beginning of a
tweet or similar short-form message should inform consumers that the message
is an advertisement, and the word “Sponsored” likely informs consumers that
the message was sponsored by an advertiser. Other abbreviations or icons may
or may not be adequate, depending on whether they are presented clearly and
conspicuously, and whether consumers understand their meaning so they are not
misled.26 Example 17 Misleading a significant minority of reasonable consumers is
a violation of the FTC Act.27
– end quote –
That seems to be pretty clear-cut. Now let's look at how Gawker Media's Twitter account , @KinjaDeals, handles this:
https://archive.today/qpyQi
Hmmm, it doesn't seem to mention that any of these Tweets are actually for-profit Amazon affiliate links. They do mention something about these deals being “curated”, but what does that really mean? Would this single, ambiguous word qualify as “clear and conspicuous” disclosure under the FTC rules?
Let's click on some links. Maybe they take us to the full article with the full disclosure wording.
https://archive.today/kAND7 (Playstation 4 Bundle)
https://archive.today/PzUUz (Sony a5100 Camera)
https://archive.today/ei36R (Razor Naga Hex Gaming Mouse)
https://archive.today/k0e20 (TCL 1080p Smart LED TV)
https://archive.today/SYRxU Samsung 1080p Smart Plasma HDTV)
https://archive.today/EOOgb (The Walking Dead: Season 4 Blue-ray)
https://archive.today/aH6JH (Breville Barista Express Espresso Machine)
And so on …
Note that each of the links goes directly to an Amazon.com page with Gawker Media's affiliate information embedded into the URL. But where is the disclosure statement? Those pages are bypassed. No one clicking on these Tweets is ever shown this FTC-required language. All of it is, conveniently, never shown to the user. If Gawker Media is not profiting off of the Amazon.com affiliate program, why is that information being embedded into the URL links? If they are profiting off of the links, where are the disclosure statements? The FTC guidelines seem to be unambiguous in this situation. It’s another question worth asking.
The Quest to Determine the Best Rechargeable Battery
This is an archived article from Gawker Media's cross-site Kinja Co-Op, dated 10/20/2014:
https://archive.today/rpHOx
In this article, readers are encouraged to vote for the best rechargeable battery. Once the voting is complete, a winning brand of battery will be crowned the victor. This article was posted by Shane Roberts, a member of the now-familiar “Commerce Team”.
At the bottom of the post, there is some vague wording about how Gawker Media might profit off of these “deals”. This is the FTC-required disclosure statement. So this is not a real “poll”, but an ad. At least this fact is disclosed. So everything seems to be in order here.
But look at the reader comments. Many people certainly seem eager to post links to their favorite battery brands. Curiously enough, most of these links aren't to the battery manufactures' websites, but instead go to Amazon.com. What happens if we click on those links? As you might have guessed, we are taken to Amazon.com. As you might not have guessed, you arrive with Gawker Media's affiliate information embedded in the URL.
Ask yourself this: were you expecting the comment section to be riddled with Gawker Media affiliate links? I wasn't. I clicked on one by chance and was surprised with what I saw. In fact I found no less than 8 Amazon.com affiliate links embedded into the comments:
https://archive.today/Q7Y5k (Dino)
https://archive.today/lOnhq (wazmo)
https://archive.today/zmYqr ( protogenic)
https://archive.today/MVzzs (diver1234)
https://archive.today/WjwFH (anna.rhoswen)
https://archive.today/jf4UX ( j_fuze)
https://archive.today/uJl2A ( PhilFromPhilly)
https://archive.today/wvWZC (axiomatic)
Is Gawker Media profiting off of these affiliate links hidden in the comment section? If so, this should be disclosed. I read through Gawker Media's disclosure statement and did not find any mention of reader comments containing for-pay affiliate links. This must mean that all of the affiliate information embedded in the comments are for informational purposes only. Any other explanation would be less than “clear and conspicuous” disclosure.
A Closer Look at Gaker Media “Deals” and the “Commerce Team”
Gawker Media and its affiliated sites run a number of promotional programs that take advantage of Amazon.com's affiliate links. These run under a variety of names including “Kinja Deals”, “Kotaku Deals”, “Gizmodo Deals” and so on. All of these are considered ads (of a particular sort) by the FTC.
In light of the FTC guidelines on “clear and conspicuous disclosure” required for affiliate links, it is instructive to view how these native advertisement articles are presented on Gawker Media's websites.
This is an archived page for thisKotaku Deal that ran on November 1st 2014 (the post in question is about a third of the way down the page) :
https://archive.today/9V0iL
Notice who authored this post: Shep McAllister, Commerce Team. The “Commerce Team” , again, is the group of people at Gawker Media responsible for posting Amazon.com and other affiliate links.
If you click to read the full post you arrive at this page:
https://archive.today/liWnx
Note the disclaimer text towards the bottom (“We work together with you to find the best products and best deals …. click here to learn more ...”). This is the disclosure text that Gawker Media is required to display because this article is really a form of advertisement and, per the FTC, this must be fully disclosed to the reader.
Fair enough. Gawker Media takes part in the Amazon.com affiliate program. They disclose the nature of their relationship with Amazon.com. If you click on the Amazon link, you are taken to Amazon.com. If you purchase the Blue-ray, Gawker Media presumably gets a small percentage of your purchase.
But now go back to the first page, the front page that offers up a selection of articles for readers to choose from:
https://archive.today/9V0iL
Now click on the last link of the article. You are taken directly to Amazon.com:
https://archive.today/87zZ8
Note the full URL in the “Save from” box towards the top of the page:
http://www.amazon.com/Cosmos-A-Spacetime-Odyssey-Blu-ray/dp/B00IWULSTC/ref=br_lf_m_9681485011_1_1_img?ie=UTF8&m=ATVPDKIKX0DER&s=movies-tv&pf_rd_p=1963379262&pf_rd_s=center-2&pf_rd_t=101&pf_rd_i=9681485011&pf_rd_m=ATVPDKIKX0DER&pf_rd_r=0GXNRG3DAM9KZEK7TCX8&&tag=kotakuamzn-20&ascsubtag=[type|link[postId|1653581597[asin|B00IWULSTC[authorId|5727177402741770316
Note the structure of the URL: it is an Amazon affiliate link. (…/dp/....&tag=kotakuamzn-20....).
Now go back and look at the first page, that is, the front page which lists the selection of articles.
Where is the disclosure that the link in article is really an ad? The article states it is posted by Shep McAllister, Commerce Team. Does this somewhat cryptic title meet the standards of full disclosure as set out by the FTC? The best answer might be to review again what the FTC itself says about disclosing marketing links:
“When the product review has a clear and conspicuous disclosure of your relationship – and the reader can see both the product review and the link at the same time – readers have the information they need. If the product review and the link are separated, the reader may lose the connection”
As for where to place a disclosure, the guiding principle is that it has to be clear and conspicuous. Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn’t good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.”
Does stating the article is posted by Shep McAllister, Commerce Team meet the criteria that the relationship is disclosed “clearly and conspicuously”? A reasonable person might think not. Aside from the words “Commerce Team”, there is really no indication that Shep McAllister is anyone other than a normal poster and that the article is not, in fact, an advertisement. In addition, the FTC states that the “the guiding principle” for where to place a financial disclosure requires that it not buried behind hyperlinks, etc … But in order to see the full disclosure, you need to click and read the full article. But many people will simply click on the link displayed on the front page and never see any explicit disclosure. Arguably, this conveniently circumvents the rules of “clear and conspicuous” disclosure as set out by the FTC
I found many other examples of “Commerce Team” ads on Gawker Media's websites that follow the practice of “full and conspicuous” disclosure in the full article, but with arguably little-to-no disclosure on their websites’ “front pages”. This despite the fact that many of the links take the reader directly to Amazon.com using what appear to be paid affiliate links. The ability for a consumer to click directly on link before being presented with any disclosure language seems to skirt the Federal Trade Commission's rules of for where and how the disclosure language needs to be placed.
Summary:
Gawker Media, like all bloggers and websites, is required by the Federal Trade Commission to disclose for-profit affiliate links in a “clear and conspicuous manner”. Failure to do so violates the rules and guidelines enforced by the FTC. At this point, we can only say that Gawker Media's affiliate information follows people into Amazon.com when following certain links even when the required disclosure statements are on a different page, are cryptic, could be construed as grossly inadequate or, as we have seen in many product reviews and news articles, missing altogether. The affiliate information is also embedded into multiple links of at least one comment section, which could strike a reasonable observer as quite surprising.
If Gawker Media is not using these affiliate links to make money – that is, if they are there only for information-gathering purposes (an odd use case but not impossible) – then the practice would seemingly fall within the guidelines set by the FTC for disclosure. In either case, it would be best if Gawker Media clarified these matters to the public at large.
I believe this line of investigation is worth pursuing. It would be helpful if other people began to comb through Gawker Media sites’ affiliate linked articles as well. If you are interested in doing this, be sure to archive and screenshot everything. Also preserve other pages that might let users unknowingly “jump past” the required disclosure statements.
Keep in mind that I found these irregularities – whether they are intentional or not - in just a few hours. It is very likely that other examples are waiting to be found. It would also be helpful if someone with legal experience could read through Federal Trade Communication rules and guidelines to confirm that these rules and guidelines are indeed being broken (again, whether intentionally or not). It would seem to be a possibility worth pursuing. Remember, Gawker Media might have declared themselves above good taste and accepted journalistic practices, but they are not above the law.
In 2010, the Federal Trade Commision (the FTC) revised their rules and guidelines to reflect the ongoing boom in E-commerce. Among the revisions was a requirement for “clear and conspicuous” disclosure when a blog or other website displays an advertisement that might not be obviously distinguishable from the website's normal content. This includes, among other things, for-profit network affiliate links.
For example, Amazon.com has a popular network affiliate program called Amazon Associates. It works like this: suppose I have a website that reviews widgets. If I place a link on my website to a page on Amazon.com that sells widgets I, as the website owner, would receive a small portion of any sales that are funneled to Amazon.com through my link. This creates a mutually beneficial financial relationship between my widget review site and Amazon.com. Per the FTC, this financial relationship must be disclosed in full to any consumer before he or she clicks on any network affiliate link.
The rules, guidelines and examples of what the Financial Trade Commission considers to be adequate disclosure of these financial relationships are provided in the following three documents:
http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf
http://business.ftc.gov/documents/bus71-ftcs-revised-endorsement-guideswhat-people-are-asking
http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf
Reading through these documents is instructive. In short, the Federal Trade Commission requires that financial arrangement between websites and companies must be made explicit and obvious. Of special note is a section of the “Revised Endorsement Guides” that deals with affiliate marketer links:
“I’m an affiliate marketer with links to an online retailer on my website. When people click on those links and buy something from the retailer, I earn a commission. What do I have to disclose? Where should the disclosure be?
Let’s assume that you’re endorsing a product or service on your site and you have links to a company that pays you commissions on sales. If you disclose the relationship clearly and conspicuously on your site, readers can decide how much weight to give your endorsement. In some instances, where the link is embedded in the product review, a single disclosure may be adequate. When the product review has a clear and conspicuous disclosure of your relationship – and the reader can see both the product review and the link at the same time – readers have the information they need. If the product review and the link are separated, the reader may lose the connection.
As for where to place a disclosure, the guiding principle is that it has to be clear and conspicuous. Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn’t good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.”
It should also be noted that while the affiliate's share of a single sale is small, popular websites can still parlay these programs into substantial sums of money. In fact, Nick Denton, the owner of Gawker Media, issued a memo in 2013 in which he boasted that Gawker Media could make many thousands of dollars from a single affiliate link. Ad Age even wrote an article about the success that Gawker Media was enjoying with with native advertising and affiliate links:
http://adage.com/article/digital/memo-gawker-expects-10-revenue-e-commerce-2013/239355/
How to Spot an Amazon Associate Affiliate Link
Now for a brief but important digression: in the absence of full disclosure, how can a consumer spot an Amazon Associate affiliate link? This can be done by inspecting the complete URL of the link. An Amazon Associate affiliate link has the following structure:
http://www.amazon.com/dp/productidentifierhere/?tag=unique_associate_id_here
Note that this link does not actually go anywhere. In keeping with our fictitious widget review site, an affiliate link might look like this:
http://www.amazon.com/dp/1234567890/?tag=widgetreviews-20
For a more detailed explanation of how Amazon Associate affiliate links work, visit the Amazon Associates section at Amazon.com and view the page on link formatting.
How Amazon.com Links are Handled on Gawker Media Websites
Gawker Media runs some of the most popular websites in the world. These include sites like Gizmodo, Kotaku, Jezebel, Lifehacker, Deadspin and the eponymous Gawker.com.
Literally thousands of reviews, news articles, editorials and informational blog posts are hosted on Gawker Media's family of websites.
Given the consumer and tech-driven nature of many of Gawler Media's websites, it should come as no surprise that many of their articles mention Amazon.com or products that can be purchased through Amazon.com. In addition, a careful search for Amazon.com links found in Gawker Media websites returns many hundreds of results and perhaps more.
Many of these Amazon.com links and articles are centered around Gawker Media's “Commerce Team”. The “Commerce Team” finds “deals” which are then offered to visitors on their website. As you might expect, any deals that involve Amazon.com are embedded with Gawker Media's affiliate information. Presumably, Gawker Media receives part of every sale that is funneled through these links. This is (broadly speaking) a type of native advertisement, that is, an article that might appear to a casual viewer of a website as normal content on the site but is actually a for-profit posting. This is not illegal, provided the website in questions disclose this to the consumer.
And, indeed, articles from the “Commerce Team” do have a disclosure statement at the bottom of the post. Whether or not these statements meet the Federal Trade Commissions' criteria for adequate disclosure is a matter which will be discussed later. But, at the very least, Gawker Media posts some kind of disclosure notice for “Commerce Team” articles.
However, a careful inspection of Gawker Media's websites reveals the following: it is not only the Amazon.com links found in “Commerce Team” posts that are being embedded with Gawker Media's affiliate information, but in fact nearly all Amazon.com links site-wide are embedded with affiliate tags. This includes links found in product reviews, in news articles, in general blog posts, in Tweets, in images, and even in links found in the reader comments sections.
Affiliate Links Embedded into Product Reviews, News Articles and Other Blog Posts
Here is an archived version of a Gizmodo article posted on 10/27/14 entitled “Fire TV Stick vs Chromecast vs Roku Stick: Streaming Dongle Showdown”:
https://archive.today/D63Sh
This is ostensibly a review comparing Chromecast, Roku and Amazon's Fire TV Stick. But look at the links “$30 voice remote” and “$40 game controller”. Both of these links are embedded with Gawker Media's Amazon affiliate information. If a consumer clicks on either of these links, he or she is taken to Amazon.com pages where both of these products can be quickly and conveniently purchased. And, since Gawker Media's affiliate information is embedded into those links, Gawker Media presumably receives a share of the sale. But look at the article again. It is a review, not a “Commerce Team” posting. And there is no disclosure whatsoever that Gawker Media might profit from the links contained on this page. In essence, this review is really a (type of) advertisement and should be disclosed as such.
The Federal Trade Commission makes it quite clear in their guidelines that affiliate links constitute a financial relationship between a website and the fulfillment company and that this financial relationship must be “clearly and conspicuously” disclosed to a consumer. Failure to do so is a serious breach and could result in action by the Federal Trade Commission.
But perhaps the Chromecast review was one-off accident and not a pattern of behavior on the part of Gawker Media. But such an explanation seems rather implausible since even a relatively brief examination of Gawker Media websites reveals a great many other product reviews, news articles and blog posts that are embedded with affiliate information:
Gizmodo 10/07/14 Lego Creator Aviation Adventure Affiliate link at bottom of post.
https://archive.today/OsnzV
Gizmodo 10/2014 Kindle Voyage Review “$100 Paperwhite” link is an affiliate link.
https://archive.today/pX4XW
Kotaku 10/10/14 Cost of Nintendo’s Amiibo Figurines “Amazon” link is embedded with affiliate information.
https://archive.today/aznFw
Gizmodo 10/24/14 My First Kindle “Kindle” link is embedded with affiliate information
https://archive.today/eBxUF
Gizmodo 10/10/14 Lego Exo-Suit back in stock on Amazon “Amazon” link is embedded with affiliate information
https://archive.today/g74N2
LifeHacker 10/18/13 How to Use Amazon Glacier “Amazon Glacier” link is embedded affiliate information (yes, you can use affiliate links for Amazon’s AWS services, I checked).
https://archive.today/oClk2
Gizmodo 11/6/14 Amazon's Echo Might Be Its Most Import Product In Years “$100” is an affiliate link.
https://archive.today/lw5z0
Gizmodo 10/27/14 Amazon's New Chromecast Competitor Is Just $20 Until Wednesday “Amazon just announced” is an affiliate link.
https://archive.today/e46L1
Gizmodo 8/28/14 Blog post by Leslie Horn “Amazon Instant Video” and “Amazon” links are affiliate links
https://archive.today/4LcZC
Gizmodo 8/6/14 NYC, Philly, DC and More Can Get Same-Day Amazon Deilvery Now “Amazon” link is an affiliate link
https://archive.today/Jzuei
Gizmodo 7/8/14 Kindle Unlimited Is Here : Read As Much As You Like For $10 a Month “Kindle Unlimited subscription service” is an affiliate link.
https://archive.today/4gtbr
Gizmodo 6/23/14 Yes! You Can Buy a Waterproof Kindle Paperwhite “the waterproof cases” is an affiliate link.
https://archive.today/t2hoq
Lifehacker 11/4/14 Amazon Gives Unlimited Photo Storarge to Prime Customers “Amazon Prime Photos” is an affilate link.
https://archive.today/tzi3l
Lifehacker 9/24/14 Most Popular Place to Buy Used Games and Consoles:Amazon “Amazon” is an affiliate link
https://archive.today/BrCNO
Lifehacker 8/26/14 Amazon's Used Textbooks Are Consistently Cheaper Than Other Retailers “which is free for student for the first six months” is an affiliate link.
https://archive.today/lUpXW
Jezebel 12/20/13 There's More Where This Disgusting, Hilarious Kleenex Review Came From “this Amazon review” is an affiliate link.
https://archive.today/umqn1
Gawker.com 11/7/2014 The Very Best TV Series to Stream This Weekend “Broad City (Amazon Prime”) is an affiliate link.
https://archive.today/bz1gA
Gizmodo.com 12/12/12 Every Kindle Fire Is on Sale Today – If You're a Mom “a Kindle Fire”, “7-inch Kindle Fire HD”, “8.9-inch big brother”, and “free to join” are all affiliate links.
https://archive.today/oL0Rc
Gizmodo.com 5/19/14 How to Find the Perfect LED Flashlight “ITP A3 EOS Rev 2” , “generic, Chinese-made thing” and “Genix Headlamp Band” are all affiliate links.
https://archive.today/Ov3A5
Lifehacker.com 3/29/13 Get to Know the DIY Project All Star Tools This Weekend “a soldering kit” and “$20 board” are both affiliate links.
https://archive.today/bjMuR
And none of these examples contain any kind of affiliate disclosure whatsoever. There may very well be many more examples to be found. I simply stopped once I had collected twenty.
Kinja And Affiliate Links
An explanation of how seemingly all Amazon.com links found on Gawker Media's websites end up being embedded with affiliate information - even if that link is in a product review, news article, blog post, Tweet or reader comment - might be found in the following Digitimes article date 10/14/14:
https://archive.today/RJMtL
The relevant section of the article is as follows:
“All this happened somewhat serendipitously. Gawker Media first started using e-commerce links on Gizmodo, its gadget site. Gawker was using its publishing platform Kinja to surface relevant links within articles. Once Denton realized that Kinja could also be used to plug relevant e-commerce links into posts they began to appear regularly on Gawker’s other blogs like car-focused Jalopnik, gaming site Kotaku and Lifehacker."
Kinja is the proprietary content management system created by Gawker Media. It is used on Gawker Media's entire family of websites. It is plausible then that Kinja or a component of Kinja is what embeds seemingly all Amazon.com links on Gawker Media websites with the affiliate information. While this is presumably profitable for Gawker Media, it conveniently ignores the FTC requirements in regards to full disclosure of affiliate links. And the Federal Trade Commission is clear that websites must provide this disclosure to consumers or face possible sanctions. Gawker Media owes the public an explanation of why undisclosed, for-profit affiliate links appear in many of their products reviews, news articles, blog posts and other articles found on their websites.
Affiliate Disclosure and Tweets
We already know that websites must “clearly and conspicuously” disclose affiliate links to their readership. But what about on sites like Twitter, where space is at a premium? As usual, the FTC has issued guidelines to address this. Again, from the “FTC Staff Revises Online Adverting Disclosure Guidelines”:
– begin quote --
● Use disclosures in each ad. If a disclosure is required in a space-constrained ad,
such as a tweet, the disclosure should be in each and every ad that would require
a disclosure if that ad were viewed in isolation. Do not assume that consumers will see and associate multiple space-constrained advertisements. Example 16
● Short-form disclosures might or might not adequately inform consumers of
the essence of a required disclosure. For example, “Ad:” at the beginning of a
tweet or similar short-form message should inform consumers that the message
is an advertisement, and the word “Sponsored” likely informs consumers that
the message was sponsored by an advertiser. Other abbreviations or icons may
or may not be adequate, depending on whether they are presented clearly and
conspicuously, and whether consumers understand their meaning so they are not
misled.26 Example 17 Misleading a significant minority of reasonable consumers is
a violation of the FTC Act.27
– end quote –
That seems to be pretty clear-cut. Now let's look at how Gawker Media's Twitter account , @KinjaDeals, handles this:
https://archive.today/qpyQi
Hmmm, it doesn't seem to mention that any of these Tweets are actually for-profit Amazon affiliate links. They do mention something about these deals being “curated”, but what does that really mean? Would this single, ambiguous word qualify as “clear and conspicuous” disclosure under the FTC rules?
Let's click on some links. Maybe they take us to the full article with the full disclosure wording.
https://archive.today/kAND7 (Playstation 4 Bundle)
https://archive.today/PzUUz (Sony a5100 Camera)
https://archive.today/ei36R (Razor Naga Hex Gaming Mouse)
https://archive.today/k0e20 (TCL 1080p Smart LED TV)
https://archive.today/SYRxU Samsung 1080p Smart Plasma HDTV)
https://archive.today/EOOgb (The Walking Dead: Season 4 Blue-ray)
https://archive.today/aH6JH (Breville Barista Express Espresso Machine)
And so on …
Note that each of the links goes directly to an Amazon.com page with Gawker Media's affiliate information embedded into the URL. But where is the disclosure statement? Those pages are bypassed. No one clicking on these Tweets is ever shown this FTC-required language. All of it is, conveniently, never shown to the user. If Gawker Media is not profiting off of the Amazon.com affiliate program, why is that information being embedded into the URL links? If they are profiting off of the links, where are the disclosure statements? The FTC guidelines seem to be unambiguous in this situation. It’s another question worth asking.
The Quest to Determine the Best Rechargeable Battery
This is an archived article from Gawker Media's cross-site Kinja Co-Op, dated 10/20/2014:
https://archive.today/rpHOx
In this article, readers are encouraged to vote for the best rechargeable battery. Once the voting is complete, a winning brand of battery will be crowned the victor. This article was posted by Shane Roberts, a member of the now-familiar “Commerce Team”.
At the bottom of the post, there is some vague wording about how Gawker Media might profit off of these “deals”. This is the FTC-required disclosure statement. So this is not a real “poll”, but an ad. At least this fact is disclosed. So everything seems to be in order here.
But look at the reader comments. Many people certainly seem eager to post links to their favorite battery brands. Curiously enough, most of these links aren't to the battery manufactures' websites, but instead go to Amazon.com. What happens if we click on those links? As you might have guessed, we are taken to Amazon.com. As you might not have guessed, you arrive with Gawker Media's affiliate information embedded in the URL.
Ask yourself this: were you expecting the comment section to be riddled with Gawker Media affiliate links? I wasn't. I clicked on one by chance and was surprised with what I saw. In fact I found no less than 8 Amazon.com affiliate links embedded into the comments:
https://archive.today/Q7Y5k (Dino)
https://archive.today/lOnhq (wazmo)
https://archive.today/zmYqr ( protogenic)
https://archive.today/MVzzs (diver1234)
https://archive.today/WjwFH (anna.rhoswen)
https://archive.today/jf4UX ( j_fuze)
https://archive.today/uJl2A ( PhilFromPhilly)
https://archive.today/wvWZC (axiomatic)
Is Gawker Media profiting off of these affiliate links hidden in the comment section? If so, this should be disclosed. I read through Gawker Media's disclosure statement and did not find any mention of reader comments containing for-pay affiliate links. This must mean that all of the affiliate information embedded in the comments are for informational purposes only. Any other explanation would be less than “clear and conspicuous” disclosure.
A Closer Look at Gaker Media “Deals” and the “Commerce Team”
Gawker Media and its affiliated sites run a number of promotional programs that take advantage of Amazon.com's affiliate links. These run under a variety of names including “Kinja Deals”, “Kotaku Deals”, “Gizmodo Deals” and so on. All of these are considered ads (of a particular sort) by the FTC.
In light of the FTC guidelines on “clear and conspicuous disclosure” required for affiliate links, it is instructive to view how these native advertisement articles are presented on Gawker Media's websites.
This is an archived page for thisKotaku Deal that ran on November 1st 2014 (the post in question is about a third of the way down the page) :
https://archive.today/9V0iL
Notice who authored this post: Shep McAllister, Commerce Team. The “Commerce Team” , again, is the group of people at Gawker Media responsible for posting Amazon.com and other affiliate links.
If you click to read the full post you arrive at this page:
https://archive.today/liWnx
Note the disclaimer text towards the bottom (“We work together with you to find the best products and best deals …. click here to learn more ...”). This is the disclosure text that Gawker Media is required to display because this article is really a form of advertisement and, per the FTC, this must be fully disclosed to the reader.
Fair enough. Gawker Media takes part in the Amazon.com affiliate program. They disclose the nature of their relationship with Amazon.com. If you click on the Amazon link, you are taken to Amazon.com. If you purchase the Blue-ray, Gawker Media presumably gets a small percentage of your purchase.
But now go back to the first page, the front page that offers up a selection of articles for readers to choose from:
https://archive.today/9V0iL
Now click on the last link of the article. You are taken directly to Amazon.com:
https://archive.today/87zZ8
Note the full URL in the “Save from” box towards the top of the page:
http://www.amazon.com/Cosmos-A-Spacetime-Odyssey-Blu-ray/dp/B00IWULSTC/ref=br_lf_m_9681485011_1_1_img?ie=UTF8&m=ATVPDKIKX0DER&s=movies-tv&pf_rd_p=1963379262&pf_rd_s=center-2&pf_rd_t=101&pf_rd_i=9681485011&pf_rd_m=ATVPDKIKX0DER&pf_rd_r=0GXNRG3DAM9KZEK7TCX8&&tag=kotakuamzn-20&ascsubtag=[type|link[postId|1653581597[asin|B00IWULSTC[authorId|5727177402741770316
Note the structure of the URL: it is an Amazon affiliate link. (…/dp/....&tag=kotakuamzn-20....).
Now go back and look at the first page, that is, the front page which lists the selection of articles.
Where is the disclosure that the link in article is really an ad? The article states it is posted by Shep McAllister, Commerce Team. Does this somewhat cryptic title meet the standards of full disclosure as set out by the FTC? The best answer might be to review again what the FTC itself says about disclosing marketing links:
“When the product review has a clear and conspicuous disclosure of your relationship – and the reader can see both the product review and the link at the same time – readers have the information they need. If the product review and the link are separated, the reader may lose the connection”
As for where to place a disclosure, the guiding principle is that it has to be clear and conspicuous. Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn’t good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.”
Does stating the article is posted by Shep McAllister, Commerce Team meet the criteria that the relationship is disclosed “clearly and conspicuously”? A reasonable person might think not. Aside from the words “Commerce Team”, there is really no indication that Shep McAllister is anyone other than a normal poster and that the article is not, in fact, an advertisement. In addition, the FTC states that the “the guiding principle” for where to place a financial disclosure requires that it not buried behind hyperlinks, etc … But in order to see the full disclosure, you need to click and read the full article. But many people will simply click on the link displayed on the front page and never see any explicit disclosure. Arguably, this conveniently circumvents the rules of “clear and conspicuous” disclosure as set out by the FTC
I found many other examples of “Commerce Team” ads on Gawker Media's websites that follow the practice of “full and conspicuous” disclosure in the full article, but with arguably little-to-no disclosure on their websites’ “front pages”. This despite the fact that many of the links take the reader directly to Amazon.com using what appear to be paid affiliate links. The ability for a consumer to click directly on link before being presented with any disclosure language seems to skirt the Federal Trade Commission's rules of for where and how the disclosure language needs to be placed.
Summary:
Gawker Media, like all bloggers and websites, is required by the Federal Trade Commission to disclose for-profit affiliate links in a “clear and conspicuous manner”. Failure to do so violates the rules and guidelines enforced by the FTC. At this point, we can only say that Gawker Media's affiliate information follows people into Amazon.com when following certain links even when the required disclosure statements are on a different page, are cryptic, could be construed as grossly inadequate or, as we have seen in many product reviews and news articles, missing altogether. The affiliate information is also embedded into multiple links of at least one comment section, which could strike a reasonable observer as quite surprising.
If Gawker Media is not using these affiliate links to make money – that is, if they are there only for information-gathering purposes (an odd use case but not impossible) – then the practice would seemingly fall within the guidelines set by the FTC for disclosure. In either case, it would be best if Gawker Media clarified these matters to the public at large.
I believe this line of investigation is worth pursuing. It would be helpful if other people began to comb through Gawker Media sites’ affiliate linked articles as well. If you are interested in doing this, be sure to archive and screenshot everything. Also preserve other pages that might let users unknowingly “jump past” the required disclosure statements.
Keep in mind that I found these irregularities – whether they are intentional or not - in just a few hours. It is very likely that other examples are waiting to be found. It would also be helpful if someone with legal experience could read through Federal Trade Communication rules and guidelines to confirm that these rules and guidelines are indeed being broken (again, whether intentionally or not). It would seem to be a possibility worth pursuing. Remember, Gawker Media might have declared themselves above good taste and accepted journalistic practices, but they are not above the law.