Submitted by Mike Grenville on Mon, 03 Nov 2003 10:49

The Advertising Standards Authority (ASA) in the UK has upheld two complaints against The Carphone Warehouse and other companies for text messages that breached the code of conduct.

The ASA is the independent, self-regulatory body for non-broadcast advertisements, sales promotions and direct marketing in the UK. It administers the British Code of Advertising, Sales Promotion and Direct Marketing (The CAP Code) to ensure that advertisements are legal, decent, honest and truthful. "With reputable UK based brands, 'naming and shaming' can often be enough, but when they are based abroad as is often the case with this type of Text Messaging activity, it can be tricky" said Claire Forbes Head of Communications at the ASA.

"In the case of direct mail we have worked with the Royal Mail to take away companies bulk discounts and even to refuse to send their mail at all" added Forbes "and we are starting to work closely with ICSTIS to impose similar sanctions" she said.

Although it does not have powers to fine or impose sanctions on companies that break the code, it can refer breaches to the Office of Fair Trading who are able to take action. To date this has not happened for any text campaigns.

Details of recent complaints and the ASA decisions are below

The Carphone Warehouse Ltd

Date: 22nd October 2003

Sector: Computers and telecommunications

Public Complaints From: Hertfordshire, Mid Lothian

Complaint:

1. One complainant objected that the claim "free DVD player" was misleading, because the text message did not make clear that recipients would have to take out a new mobile phone contract.

2. Another complainant objected that the text message was sent without his consent. Codes Section: 27.4, 31.1, 32.1, 43.4 (Ed 11) Adjudication:

1. Complaint upheld The promoters said the promotion was targeted at consumers who already had mobile phone contracts. They acknowledged that not every consumer would get a free DVD player and said they used the words "t&c's apply" to convey that the offer was limited and had terms and conditions attached. The Authority considered that the text message did not make clear that consumers would have to take out a new mobile phone contract to obtain the offer. It considered that that was a significant condition likely to affect consumers' decisions to respond and that the words "t&c's apply" were not sufficient to qualify the offer. The Authority asked the promoters to make clear in future that offers were subject to recipients taking out a new mobile phone contract. It also asked them to ensure that their marketing communications stated other significant conditions such as closing dates of offers.

2. Complaint upheld The promoters said an external list provider had sent the messages on their behalf. They said the list provider had compiled the list from information gathered in a National Shoppers' survey; they sent a copy of that survey. They said the complainant had given permission for his details to be used but had asked the list-owners to suppress them after he had received the message. The Authority acknowledged that the survey offered respondents the chance to opt out of receiving marketing communications from third parties. It nevertheless noted the Code required marketers to have the explicit consent of consumers before sending them a promotional text message. It told the promoters to ensure that future commercial text messages sent on their behalf were sent only to consumers who had given explicit consent to receive text messages.

Mobile Interactive APS

Date: 22nd October 2003

Sector: Computers and telecommunications

Public Complaints From: Bedfordshire, Devon, East Sussex, Lanarkshire, Leicestershire, London, Surrey, Warwickshire

Complaint:

Adjudication: Complaints upheld

The advertisers did not respond to the Authority's enquiries. The Authority was concerned by the advertisers' lack of response and apparent disregard for the Code. The Authority told the advertisers not to send out unsolicited text messages and advised the Committee of Advertising Practice of the problem with the advertisers.

Mobile Media Ltd

Complaints upheld in last 12 months: 1

Date: 22nd October 2003

Sector: Computers and telecommunications

Public Complaints From: Bath, County Antrim, Dorset, Hampshire, London, Suffolk

Complaint:

Objections to a text message for a 'prize'. The message stated "This is the 2nd time we have tried 2 contact u. U have won the £400 prize. 2 claim is easy, just call 0871 474 xxxx NOW! Only 10p per minute. BT-national-rate". The complainants challenged whether the text message was misleading because:

1. it implied recipients had won £400 and

2. it stated the call cost was 10p per minute (pm), whereas the cost was 25ppm. Codes Section: 2.6, 6.1, 7.1, 27.2, 29.1, 32.1, 37.1 (Ed 11)

Adjudication: Complaints Upheld

The advertisers did not respond to the Authority's enquiries. The Authority was concerned by the advertisers' lack of response and apparent disregard for the Code. The Authority understood that recipients who replied to the text messages received discount vouchers. It considered that recipients were likely to infer from the text messages that they had won a cash prize of £400. The Authority considered that the text messages were misleading because they stated the call cost was 10ppm, whereas the cost was 25ppm. The Authority advised the Committee of Advertising Practice of the problem with the advertisers.

New Technology Telecomms Ltd

Date: 29th October 2003

Sector: Leisure

Public Complaint From: Orkney

Complaint:

Objection to a mobile phone text message for a prize award. It stated "BIG BROTHER ALERT! the computer has selected u for 10K cash or £150 voucher. Call 0906 4018816. NTT PO Box CR01327 18+ BT Landline Cost 150ppm mobiles vary - Sender:+449064018921 ... ". The complainant objected that the message misleadingly implied that:

1. the promoters were connected with the Channel 4 'Big Brother' programme and

2. the recipient would discover, by telephoning the premium rate number, whether they had won a cash prize or a voucher.

3. The Authority challenged whether the claim "£150 voucher" exaggerated the value of the prize, because it seemed to be a £100 holiday voucher.

Codes Section: 2.6, 27.4, 31.1, 34.1, 35.1, 35.2 (Ed 11)

Adjudication: Complaint upheld

Although the promoters assured the Authority that they would respond to its enquiries, they did not. The Authority was concerned by the promoters' lack of response, which it considered a breach of the Code. The Authority reminded the promoters of their responsibility to respond to the Authority's enquiries and asked them to do so promptly in future. The Authority understood that recipients who telephoned the premium rate number were directed to a website; it told them to send a stamped, addressed envelope to the promoters to claim their prize. The Authority noted, from the promoters' website, that the "£150 voucher" seemed to be a £100 holiday discount voucher. The Authority noted the text messages were sent during the time the Channel 4 'Big Brother' series was being televised and considered that the message implied that the promoters were connected with the programme. It also considered that the text message implied recipients would discover, by telephoning the premium rate number, whether they had won a cash prize or voucher. The Authority concluded that the text message was misleading and advised the Committee of Advertising Practice of the problem with the advertisers.

New Technology Telecomms Ltd

Date: 29th October 2003

Sector: Leisure

Public Complaint From: Orkney

Complaint:

1. the promoters were connected with the Channel 4 'Big Brother' programme and

2. the recipient would discover, by telephoning the premium rate number, whether they had won a cash prize or a voucher.

3. The Authority challenged whether the claim "£150 voucher" exaggerated the value of the prize, because it seemed to be a £100 holiday voucher.

Codes Section: 2.6, 27.4, 31.1, 34.1, 35.1, 35.2 (Ed 11)

Adjudication: Complaint upheld

Although the promoters assured the Authority that they would respond to its enquiries, they did not. The Authority was concerned by the promoters' lack of response, which it considered a breach of the Code. The Authority reminded the promoters of their responsibility to respond to the Authority's enquiries and asked them to do so promptly in future. The Authority understood that recipients who telephoned the premium rate number were directed to a website; it told them to send a stamped, addressed envelope to the promoters to claim their prize. The Authority noted, from the promoters' website, that the "£150 voucher" seemed to be a £100 holiday discount voucher. The Authority noted the text messages were sent during the time the Channel 4 'Big Brother' series was being televised and considered that the message implied that the promoters were connected with the programme. It also considered that the text message implied recipients would discover, by telephoning the premium rate number, whether they had won a cash prize or voucher. The Authority concluded that the text message was misleading and advised the Committee of Advertising Practice of the problem with the advertisers.

www.asa.org.uk