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  1. #1
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    Brand new so here is strange topic...Has anyone ever been named as part of a lawsuit from a buyer? Here is scenario; Buyer clicks thru to merchant site and downloads software. Buyers computer crashes, all software and Customers Accounts receivables are lost. Buyer is hopping mad and sues everyone connected in their trek to purchase that software, their attorney decides the affiliate was instrumental in leading the customer to purchase....Ouch !....How can an Affiliate protect theirselves from inheriting risk such as this ?.......

  2. #2
    ABW Ambassador
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    I have never heard of a publication being held responsible for the performance of the advertiser.

    Affiliates are publications that get paid by the advertiser to display an advertisement. In this case, it is a pay per action relationship.

    --- On the other hand, you should always shield yourself from lawsuits by forming a real corporation and doing all business through it. I would not DREAM of operating without my corporation to shield me.

  3. #3
    Affiliate Marketing Consultant Andy Rodriguez's Avatar
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    Englund,

    If you want to e-mail me some more information i can look into it for you.

    I am not aware of anyone having any negative experience downloading anything from our site.

    Andy Rodriguez,
    Online Advertising / Affiliate Marketing Manager

    TigerDirect.com
    P: (305) 415-2313
    E: andy.rodriguez@tigerdirect.com
    ICQ: 175010
    AIM: miamitigercub

  4. #4
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    That would be like someone sueing a radio station for running ads for Ford trucks. I don't think it will happen, if it does, it will be a frivilous law suit and be tossed out of court more than likely.

    We are nothing more than billboards on the highway, the Internet Super Highway that is!


    Jerry

  5. #5
    Affiliate Marketing Consultant Andy Rodriguez's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by englund:
    How can an Affiliate protect theirselves from inheriting risk such as this ?.......<HR></BLOCKQUOTE>

    Englund, as a Tiger affiliate, you are protected:

    Limitation of Liability
    --------------------------------------------------------------------------------
    In no event shall Tiger or any of its subsidiaries or affiliates be liable for any indirect, special, incidental or consequential damages including but not limited to loss of use, loss of data, loss of business or profits. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

    Andy Rodriguez,
    Online Advertising / Affiliate Marketing Manager

    TigerDirect.com
    P: (305) 415-2313
    E: andy.rodriguez@tigerdirect.com
    ICQ: 175010
    AIM: miamitigercub

  6. #6
    ABW Founder Haiko de Poel, Jr.'s Avatar
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    Moved to the Midnight Café

    <font size="2" face="Verdana">Haiko


    The secret of success is constancy of purpose. ~ Disraeli
    </font></p>

  7. #7
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    I was just about to start a thread on this, but, this thread is just about the gist of it.

    Have their been any cases of an affiliate being held liable for something they promoted?

    Examples: Pharamacy affiliate site. These merchants obviously operate in some grey area. What if you're promoting one of these places, someone buys some drugs, and something goes bad. I won't pretend to be a doctor to know if someone can overdose or have an adverse reaction to viagra, propecia, Xanax (err..actually I think its pretty well accepted for this one), or any of the other ones that are common on these sites, but, obviously someone thinks they should be controlled, as they are (supposed to be) by prescription only. I can imagine the wording used to promote could possible come into play as well.

    Example affiliate site:
    Looking for drugname? You can buy it here linked to pharm. site.
    Another example:
    Drugname is very safe and available easily over the Internet at site. Anyone can purchase it here and, blah, blah, blah.

    In the 2nd example the affiliate makes a harder sell, and, also makes some statements about the drug. Could this be used against them one day?


    Another example, promoting things which can be used for illegal purposes. Mod chips for video games, Satellite TV, etc. Any chance of liability here, if there was some sort of "crackdown" on these merchants? Scalping? Pornography? ANything which hovers near the line of legality.


    Please no ethics.

    Also, I doubt anyone here wishes to speak on this in a public forum in their capacity as legal counsel. I'm more wondering if anyone has heard of anything in the past, or, just general opinions, NOT to be considered legal advice!

  8. #8
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    Joseph
    You must be a mind reader, for I was wondering the same thing about the drugs online as well as the diet stuff.
    Cazzie

  9. #9
    ABW Ambassador
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    Cazzie [img]/infopop/emoticons/icon_smile.gif[/img] If only I were. [img]/infopop/emoticons/icon_smile.gif[/img] [img]/infopop/emoticons/icon_smile.gif[/img]

    I'm guessing there is some civil risk to an affiliate promoting pharmaceuticals of any kind. Good point about diet, I meant to throw in those as well. [img]/infopop/emoticons/icon_smile.gif[/img] Witness the suits about fen phen! When someone is injured, seems like lawyers sue whoever they can, and if they could show that your site "encouraged" them to purchase that product, I imagine, at the least they could make a case. IANAL. Though, this may be one time when being "the little guy" may be a good thing. [img]/infopop/emoticons/icon_smile.gif[/img]

    --
    ...only in the affiliates interest...
    The Newer Nicer Joseph [img]/infopop/emoticons/icon_smile.gif[/img]

  10. #10
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    I think there is reason to be cautious with any statements you make.

    possibly applicable examples:

    Rachel Hunter sued recently along with the distributor/manufacturer(?) of a diet product - Rachel had appeared in ads, had stated she had used the product and had results when she had not in fact used it.

    Sarah Michelle Gellar (?sp - the Buffy chick) was sued alongside Burger King for appearing in an ad that directly named a competitor.

  11. #11
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Moral of the story is there are 80,000 scumbag lawyers right now plotting their next frilivous law suit to keep up their Country Club memberships.

    WebMaster Mike

    "Vision without Action is a daydream .. Action without vision can be a nightmare"
    Combine the two and you have the makings of a profitable reality!

  12. #12
    ABW Ambassador Sam Bay's Avatar
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    It would be smart to publish a rock-solid "Terms and Conditions" of use of your site, to clear yourself from anything that may be caused by your advertiser's product or service, and link to it from every page.

    I think affiliate marketing now is more involved with the advertisers than the TV, radio, billboard or newspapers. We make our own suggestions, claims, and offer merchant and product reviews to get visitor to buy the product or services. That may put us in a risky position.

    Even TV stations make clear statement before the infomercials, which mostly try to sell crap.

    I've heard some lawsuits brought against the "Ab-Doer" sort of magnetic belts that were advertised on TV, for not working as promised or damaging the body. But, I've never heard TV stations were mentioned on the claims as guilty of advertising.

  13. #13
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    The whole of affiliate marketing is a pretty grey area, in my opinion. I don't think the comparison with TV advertising stands up very well.

    It is clear on TV which are adverts and which are programmes, but is it clear to your visitors that the products, sites and services you are recommending are actually advertisers and you are, in effect, being paid to promote them ?

    Often, the answer is no and this may prove to be a problem. The FTC is cracking down on deceptive advertising on search engines and has demanded a clear indication of which listings have paid to be included, which are sponsored, etc.

    I, for one, am surprised that they haven't yet targeted affiliate marketing sites in the same way. I am pretty sure they will.

    Search Engine Positioning - 1 Design 4 Life

  14. #14
    Resident Genius and Staunch Capitalist Leader's Avatar
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    Englund, in the US, I don't believe there's a way to stop someone from suing over any darned thing they want. But the customer WINNING that suit would be a different matter. As long as you didn't make any bogus claims to sell the product, the hopping-mad customer should lose. On the other hand, if you were selling "fertilizer" along with the product...you'd have something to worry about.

    ~~~~~~~~~~

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> Example affiliate site:
    Looking for drugname? You can buy it here linked to pharm. site.
    Another example:
    Drugname is very safe and available easily over the Internet at site. Anyone can purchase it here and, blah, blah, blah. ~Joseph Monuit<HR></BLOCKQUOTE>

    That "very safe" part is trouble indeed. That's a statement which is outside of the realm of "opinion", and therefore must be able to be backed up with proof to avoid liability. And what the merchant says, is NOT "proof", unfortunately:

    See the FTC advertising rules HERE.

    (Even though these are Government rules & regs, I think civil suits would use these rules to help press their claims as well. If a person bringing a suit can show that some Federal Regulation was violated, it'd bring a lot more clout to their suit--whereas, if you could show that you were operating legally and in good faith, I would expect it to take a lot of the wind out of a civil suit.)

    Scroll down about 3 paragraphs on that FTC page (excluding the lists) and you find...

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>In addition, claims must be substantiated, especially when they concern health, safety, or performance. The type of evidence may depend on the product, the claims, and what experts believe necessary. If your ad specifies a certain level of support for a claim - "tests show X" - you must have at least that level of support.~From FTC site<HR></BLOCKQUOTE>

    Some more quotes off their site:

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Advertising agencies or website designers are responsible for reviewing the information used to substantiate ad claims. They may not simply rely on an advertiser's assurance that the claims are substantiated. In determining whether an ad agency should be held liable, the FTC looks at the extent of the agency's participation in the preparation of the challenged ad, and whether the agency knew or should have known that the ad included false or deceptive claims.<HR></BLOCKQUOTE> (Bolding from me)

    Don't let that CJ (and now some new little networks, too) spin fool you...we do indeed act as ADVERTISING agencies--not "publishers"--when we write up a product!

    Of course, since that's the FTC site, they're not going to talk about all the loopholes and wiggle room that there really is in advertising. But the reality isn't quite as scary as that site makes out...unless something has radically changed in say, the last 5 years and all the loopholes suddenly got closed! [img]/infopop/emoticons/icon_wink.gif[/img]

    For instance, for purely subjective claims like "it tastes great", the fact that it's an Opinion is assumed (unless you mention a taste-testing panel or something other than YOUR personal opinion as the basis of your statement). YOU may love the taste of something--that doesn't mean anybody else will! Or YOU may love how some place's clothes fit, or the service at some hotel. Just as long as you don't "guarantee", "warrant", etc. it, or say that anyone agrees with you, you can pretty much state any opinion of yours, on purely subjective matters. (Subjective = matters of taste or preference. Objective = Provable stuff--things like safety, effectiveness, product lifespan, etc.)

    For the objective stuff, the standards are a lot higher. If you say something's "best-selling", for instance...have an "according to so-and-so" ready. Or if it's the best-seller at your site, make sure you can show your stats to back it up if you want to be safe. If something's supposedly "safer", cite the source that says so, or at least be ready to. ("According to the Road Commissioner, the Humvee...")

    And there's weird loopholes for promoting "nutraceuticals". Like, the health claim can't be on the product label (THAT can only say something like "nutritional supplement" and the ingredients), but it can be on "supporting literature". And health claims have to be stated in a certain way (forgot what way, though). And that's governed at least partly by the FDA instead of the FTC. The FDA is usually the place that comes calling on those who mis-promote this class of stuff...

    There's all kinds of exceptions and things like the above in advertising! (Advertising fascinates me so I read a lot about it. The above came from reading about ads in various papers, especially those ads that were challenged or sued over--and on what grounds they were able to stand (or had to be changed).)

    Now for my legal disclaimer: I am not a lawyer, and I do not guarantee that nothing has changed, since I read about the above ad-claim-related items.

    It's the most wonderful time of the year! ~From a "Golden Era" Christmas Song

  15. #15
    Resident Genius and Staunch Capitalist Leader's Avatar
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    I don't like to double-post, but I just saw this:

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> I've heard some lawsuits brought against the "Ab-Doer" sort of magnetic belts that were advertised on TV, for not working as promised or damaging the body.~SamBay<HR></BLOCKQUOTE>

    The Ab-Doer is not a belt, magnetic or otherwise. It's a fairly standard-style exercise machine! (And one of the products I promote.)

    Here's a straight link to The Real Ab-Doer.

    There ARE belts like you describe, and even more gimmicky ones than that, but none of them are an "Ab-Doer".

    It's the most wonderful time of the year! ~From a "Golden Era" Christmas Song

  16. #16
    ABW Ambassador Andy's Avatar
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    Your reputation and the reputation of your site go on the line when you promote something on your site. If you are not certain that it does what it's supposed to do, it shouldn't be on your site.

    Maybe you won't be held liable for the lack of performance of the products you promote, but you will lose the confidence of your site visitors if you promote shoddy merchandise to them.

    Earning trust is not easy; losing that trust is something you may never have an opportunity to get back.

    I don't promote merchants with bad press or poor customer service. I provide a form on my site for people to provide feedback on merchants I promote. If there's a problem with a merchant, I pull them. I think that means a lot to my visitors.

    Andy

    AFFILIATE MARKETING STANDARD: The site upon which the initial action to buy occurs is the site the commission is paid to. Period.

  17. #17
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    One of the cardinal rules for all of us should be that we do not express our opinions on the products being sold by our merchants. Sure, it's easy to say that Merchant X has the best whatever, but if you do you're opening yourself up to legal action from your endorsement.

    As a minimum, we should only publish what the merchants are saying about their own products or websites. And even then, you may want to edit out exaggerations or "puffery." We need to remember that we aren't engaged in selling any products -- we're just pushing visitors through doorways to allow our merchants to pitch their goods to them.

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