Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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Affiliate marketing can be a smart, scalable way to grow sales and brand awareness - especially if you’re a small business or startup trying to get traction without committing to big upfront ad spend.
But here’s the thing: once you start paying commission for referrals, running partner links, and working with creators, publishers, and websites, you’re not just “doing marketing” anymore. You’re entering into commercial relationships that come with real legal obligations.
Getting the legal side right from day one helps you avoid disputes over commission payments, reduce misleading advertising risk, protect your brand and data, and set up an affiliate program you can actually scale.
Below, we’ll walk you through the key legal essentials for affiliate marketing in New Zealand, in plain English, and from a business owner’s perspective.
What Is Affiliate Marketing (And Why The Legal Side Matters)?
Affiliate marketing is a performance-based marketing model where your business rewards third parties (affiliates) for sending you traffic or customers - usually via tracked links, discount codes, or referral mechanisms.
For example, you might:
- Pay a percentage commission on each sale generated through an affiliate link;
- Pay a fixed fee per lead (like a completed enquiry form); or
- Offer store credit, free products, or other incentives instead of cash.
From a legal perspective, affiliate marketing sits at the intersection of:
- Consumer protection law (because affiliates are making claims about your products/services);
- Contract law (because you’re agreeing on commission, tracking, payment terms, and rules of conduct);
- Privacy law (because links and tracking can involve personal information); and
- Intellectual property (because affiliates use your brand assets, images, and content).
It can feel “lightweight” when you’re just starting out. But once you’ve got multiple affiliates (or one high-performing partner), unclear terms can become expensive - fast.
Do I Need An Affiliate Agreement (Or Will An Email Thread Do)?
If you’re running affiliate marketing as a business, a written affiliate agreement (or properly drafted marketing/referral terms) is one of the best ways to protect yourself.
Yes, you can technically form an agreement through emails or messages. The problem is that informal arrangements often miss the details that matter when something goes wrong - like payment timing, refunds, chargebacks, and who “owns” a customer.
In practice, your affiliate agreement should clearly cover:
1) How Commission Is Earned
- What counts as a valid referral (sale, lead, booking, subscription sign-up, etc.);
- Whether commission is based on GST-inclusive or GST-exclusive amounts;
- Whether commission applies to discounts, bundles, gift cards, shipping, or add-ons;
- How attribution works (first click vs last click, cookie window length, discount code priority); and
- Whether self-referrals are allowed.
2) Payment Terms
- Payment frequency (monthly/quarterly);
- Minimum payout threshold;
- Payment method and invoicing requirements;
- What happens if tracking fails or data is missing; and
- Your right to withhold payment in fraud/suspicion scenarios (and how you’ll investigate).
3) Refunds, Returns, And Chargebacks
This is one of the biggest dispute areas in affiliate marketing.
If a customer returns a product, cancels a service, or triggers a chargeback, you’ll want your agreement to address whether you can:
- Reverse commission already paid;
- Offset future commissions; or
- Delay payment until a cooling-off/returns window passes.
4) What Your Affiliate Can (And Can’t) Do
Affiliates create risk for your business because they’re publicly representing your brand - but you don’t fully control what they say.
Your agreement should include rules on things like:
- Approved marketing channels (website, email, social media, paid search, etc.);
- Whether they can bid on your brand name keywords;
- Whether they can use discounting language (e.g. “cheapest”, “guaranteed results”, “cures”);
- Whether they can use your logos/images/videos;
- No spam, misleading tactics, or fake reviews; and
- Required disclosures that content contains affiliate links (more on this below).
If you’re not sure what document format makes sense for your model, many businesses use a broader Service Agreement structure (tailored to affiliate/referral arrangements), particularly where the affiliate is doing more than just linking (for example, content creation, demos, or lead nurturing).
5) Termination And Suspension Rights
You’ll want the ability to end the relationship if an affiliate is harming your brand or breaching advertising rules.
Common clauses include:
- Immediate termination for fraud, misleading conduct, or IP misuse;
- Suspension pending investigation; and
- What happens to unpaid commissions on termination.
As a general rule, don’t rely on generic templates - affiliate marketing terms usually need to be tailored to your business model, your sales funnel, your customer refund process, and the way you track referrals.
What Advertising And Consumer Laws Apply To Affiliate Marketing?
This is the section many businesses don’t think about until there’s a complaint - but it’s crucial.
Even if an affiliate writes the post, makes the video, or sends the email, your business can still wear the risk if advertising is misleading or deceptive.
The Fair Trading Act 1986
In New Zealand, the Fair Trading Act 1986 is a key law governing advertising and sales practices. In simple terms, it prohibits misleading and deceptive conduct and false or misleading representations.
Affiliate marketing can trigger Fair Trading Act risk when affiliates:
- Make performance claims your business can’t prove;
- Misrepresent pricing or savings (for example, “50% off” when that’s not genuine);
- Suggest endorsements or approvals that don’t exist; or
- Create urgency or scarcity claims that aren’t true (“only 2 left” when there are plenty).
Practical tip: Give affiliates clear “dos and don’ts” and consider providing an approved claims list (especially for industries like health, beauty, finance, and education where claims can be sensitive).
Advertising standards (including “ads” on social media)
In practice, you should also think about New Zealand’s advertising standards and regulator expectations for online content - particularly where influencer posts, reviews, short-form video, or “native” style content could look like an independent recommendation.
As a risk-management baseline, require affiliate content to be clearly identifiable as advertising when there’s a commercial relationship, and avoid anything that could confuse an ordinary customer about whether the content is paid promotion. The Advertising Standards Authority (ASA) codes and guidance are commonly used benchmarks in New Zealand for how ads should be presented, including on social media.
It’s also worth keeping in mind that the Commerce Commission can take action where marketing is misleading, even where the message is delivered through third parties. That’s why clear contractual controls (and fast takedown/correction rights) matter.
The Consumer Guarantees Act 1993
If you’re selling to consumers, the Consumer Guarantees Act 1993 also matters, because it provides automatic guarantees around acceptable quality, fitness for purpose, and remedies.
This links back to affiliate marketing because if affiliates oversell what your product can do, customers may feel misled and demand refunds or remedies - and you’ll be dealing with the fallout.
Pricing And Promotions Must Be Clear
Affiliate marketing often uses discount codes and special offers. Make sure:
- The terms of the offer are clear (expiry dates, exclusions, minimum spend);
- Affiliates aren’t inventing “exclusive” offers you haven’t approved; and
- Landing pages match what the affiliate is promising.
If you run giveaways or “win” promotions as part of affiliate campaigns, it’s also worth making sure you have proper Competition Terms And Conditions in place.
How Do We Handle Disclosures, Transparency, And “Sponsored” Content?
Affiliate marketing works best when audiences trust the affiliate - and transparency is a big part of that.
From a legal and risk-management perspective, you should require affiliates to clearly disclose that they may earn a commission if someone purchases through their link or code.
While disclosure standards can vary depending on the platform and context, the key goal is that the audience isn’t misled about:
- The commercial relationship between your business and the affiliate; and
- Whether the content is independent opinion or paid promotion.
Practical tip: Build disclosure obligations into your affiliate agreement, including where the disclosure needs to appear (for example, near the link/code, or at the start of a post/video caption). In New Zealand, clear and prominent labels like “ad”, “advertisement”, “paid partnership”, or “affiliate link” are commonly used to make the relationship obvious (not buried in a footer, a long list of hashtags, or a hard-to-find disclosure page).
This protects your brand as well. If an affiliate fails to disclose and a customer complains, you want a contractual right to require corrections, remove content, or terminate the relationship.
What Privacy And Data Rules Apply When Tracking Affiliate Marketing?
Affiliate marketing often relies on tracking tools - links, cookies, pixels, analytics, and customer attribution data.
In New Zealand, the Privacy Act 2020 matters any time your business collects, uses, stores, or discloses personal information.
Depending on how your affiliate marketing is set up, personal information could include:
- Names and emails captured through lead forms;
- Order details linked to an identifiable customer;
- IP addresses and device identifiers (in some contexts); and
- Behavioural tracking data tied back to a person.
Questions To Ask Your Business (Before Launching Or Scaling)
- Are you sharing customer data with affiliates, or only reporting aggregated commissions?
- Are affiliates collecting customer data on your behalf (for example, running a landing page or lead magnet)?
- Do you use third-party tracking tools that store data offshore?
- Do you have a clear process for handling privacy requests or complaints?
If your website collects data (especially through lead forms, account sign-ups, cookies, or analytics), having a properly drafted Privacy Policy is a practical baseline.
If you’re working with affiliates who process personal information on your behalf, you may also need to consider whether additional privacy clauses (or a separate data processing arrangement) are appropriate for your risk profile. This is particularly important if you’re in a regulated or sensitive sector.
How Do We Protect Our Brand And Content In Affiliate Marketing?
Affiliate marketing depends on people using your brand assets - your name, logos, product images, videos, and sometimes even your written copy.
That’s great when it’s done properly. It’s risky when it’s uncontrolled.
Set Clear Rules For Brand Use
Your affiliate agreement should spell out what an affiliate can use and how, including:
- Whether they can use your logos (and which versions);
- Whether they can edit images or videos;
- Whether they can use your brand name in domain names, handles, or ad copy;
- Whether they can create “lookalike” branding; and
- What happens to content they created for you when the relationship ends.
Protect Your Trade Marks And Business Name
It’s much easier to enforce brand rules when your IP is properly protected.
If your business name and logo are valuable (or you’re investing heavily in marketing), it may be worth considering trade mark protection - and having a plan for what you’ll do if an affiliate or competitor tries to copy your branding or create confusingly similar pages. Issues like Trademark Infringement can come up unexpectedly once you start getting attention online.
Be Careful With Customer Reviews And Testimonials
Affiliates sometimes publish testimonials, before/after images, or “results” stories. Make sure you’re comfortable that:
- The reviews are genuine and not fabricated;
- You have permission to use customer images or quotes; and
- Claims are representative and not misleading.
Having clear written rules around what affiliates can publish helps you act quickly if something crosses the line.
Key Takeaways
- Affiliate marketing is a commercial growth strategy, and it comes with contract, consumer law, privacy, and IP obligations - not just “marketing tasks”.
- A clear affiliate agreement is the best way to reduce disputes over commission, attribution, refunds, and acceptable marketing conduct.
- The Fair Trading Act 1986 is a major risk area in affiliate marketing, especially where affiliates make product or pricing claims that could be misleading.
- If you sell to consumers, the Consumer Guarantees Act 1993 still applies, and affiliate-led overpromising can create refund complaints and reputational damage.
- If you work with creators or publishers, build in clear disclosure rules so affiliate content is obviously promotional where required (and aligned with ASA-style guidance and general Commerce Commission expectations around not misleading consumers).
- If your affiliate program involves tracking links, cookies, lead forms, or sharing customer data, you should check your Privacy Act 2020 compliance and have a fit-for-purpose Privacy Policy.
- Protect your brand by setting clear rules for logo and content use, and consider trade mark protection as your affiliate program scales.
- Because affiliate commissions and incentives can have tax and GST implications (including invoicing and how you treat commission amounts), it’s worth getting accountant advice on the right setup for your business.
- If you’re unsure how to structure your affiliate program, getting tailored legal advice early can save you time, stress, and expensive clean-ups later.
If you’d like help setting up affiliate marketing terms, reviewing your advertising risk, or making sure your affiliate program is legally protected from day one, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.
