ASA Adjudication on Independent News & Media (UK) Ltd

Ad

A sales promotion, in the Independent, for a free DVD from Play.com. The front-page flash was headed “FREE DVD FOR EVERY READER”. On a page inside the newspaper further text stated “CLAIM ONE OF TEN AWARD-WINNING WORLD CINEMA FILMS … The Independent has teamed up with Play.com, the UK’s favourite online entertainment retailer to offer every reader a free world cinema DVD from the titles below”. The ad showed an image of ten DVD’s. The small print stated “Subject to availability. In the event of excess demand for any given title you may be required to select an alternative DVD”.

Issue

Two complainants challenged whether there was sufficient availability of all ten DVDs, because only one of the DVDs was available when they tried to take up the offer.

CAP Code (Edition 11)

Response

Play.com said to obtain the free DVD readers had to collect three passwords from the five that were printed in the Independent and one password that appeared on the Independent's website. They said the offer ran in the paper from 30 October to 3 November. Readers then had to use those four passwords on the Play.com website and register their details. They said, within seven days of them entering their details, they sent readers a voucher with a unique personal password. Provided readers used their unique password on the Play.com site before the 15 November a DVD was sent to them free of charge.

Play.com said they had run similar DVD promotions on several occasions, including three promotions with the Sun Newspaper offering a free DVD for every reader, a promotion with Odeon cinema for cinema-goers and a promotion with Dorothy Perkins for online shoppers. They said the percentage of redemptions in those promotions had ranged from 0.5% in the Odeon and Dorothy Perkins promotions and between 1.7% and 2.0% in the Sun promotions. As a result of those experiences they had calculated the lowest likely redemption at 0.5% and the highest likely redemption at 2.0%. They said the Independent's circulation was 235,000 and therefore the lowest likely redemption had been calculated at 1,265 and the highest at 5,060. They said the relative popularity of each title was also forecasted using previous sales patterns, how recently they had been released and the type of product it was; for example "A Very Long Engagement" was a two disk special edition and they therefore assumed it would be more popular than a single disc title. They provided figures for the estimated take-up of each title. They said that model was presumed to be very robust particularly as the promotion concentrated on the World cinema genre and they were all foreign language titles with a relatively small consumer market. They said they had, however, carried an extra 10% of stock of each title to accommodate any particular fluctuations in demand.

Play.com said the actual number of registrations was 67,000, which was 28% of the Independent's circulation. They said the numbers claiming the free DVD voucher had far exceeded any reasonable expectation of redemption and dwarfed any experience that Play.com had of promotions of that type. They said the principle reason for that was that some websites had listed the passwords printed in the newspaper for their site traffic to use. They said the passwords were then replicated on popular social network sites and started appearing on Google search results. They said that activity had elevated the consumer interest and increased the number of voucher claims.

Play.com said that they nevertheless issued a free DVD voucher to all applicants. They said there was an immediate high level of response with up to 200 orders per minute being placed for DVDs across the range of titles available. They said this eroded stock quickly and they approached their suppliers to gain incremental stock but were refused by a number of suppliers as they considered that free DVD promotions positively encouraged DVD pricing deflation across the market.

They said as a result they had to back-fill the promotion with stock that was available to them. They said the total redemption figure reached 18,223, which was 3.6 times the maximum redemption that they had forecast. Their figures showed that out of the 18,223 DVDs given away, 14,506 were "A Very Long Engagement".

Play.com said they had conducted the promotion in a professional and well resourced manner. They said the Play.com site had been capable of managing entry levels 13 times greater than the most optimistic forecast would have predicted. They said there was always a free DVD available to every reader (and many applicants who it was reasonable to assume were not readers) throughout the promotion. They said, in addition, each reader who complained directly to them or the Independent was sent a new free DVD voucher that enabled them to redeem any of the original ten titles within the promotion. They said they and the Independent had done everything possible to ensure that customers were not misled and had a positive experience of the activity.

The Independent said Play.com had a good reputation and had experience of similar promotions. They said they were told, and had no reason to doubt, that Play.com was more than able to deal with a DVD promotion for the Independent. The Independent said they had been confident that they were dealing with a reputable company and that its approach to the promotion had been thorough, reasoned and professional.

They said they had monitored the online registration and on the first day readers could register their passwords, take-up was higher than anticipated. Nonetheless, they said Play.com assured them that it could cope with demand even though it was in excess of that anticipated.

On the second day, however, in one two-hour period 45,000 people registered passwords and Play.com became concerned. They said that figure represented over 25% of the Independent's circulation. They said it was an extraordinary figure which was not anticipated and which they believed could not have been reasonably anticipated. They said it was more than 12 times the take up, as a percentage of circulation, for a similar promotion run by Play.com in the Sun newspaper.

They said the fact that that figure was so high was the reason that the ten titles on offer ran out more quickly than anticipated and also why Play.com could not arrange for further supplies. They said the DVDs for the promotion were full-length boxed DVDs as bought from a shop and were not an excerpt or abridged extract or in cardboard covers, as with many other promotions.

They said Play.com was, nevertheless, able to obtain supplies of the DVD of "A Very Long Engagement" in sufficiently large numbers. They said this was a two DVD set in a presentation box, which Play.com originally anticipated would be popular, because it was the most recent of the ten films and was a two-DVD box set. They said the DVD which most people received was therefore a particularly good one.

They said they understood that many of the websites that contained the passwords for the offer did not make clear that the ten films on offer were all foreign language films. They said they believed many people using these sites thought they could get a free DVD of their choice from Play.com. They said that would explain the high numbers of registrations for the offer and the difference in the number of registrations and the number who ultimately redeemed the voucher which Play.com sent them; around 67,000 people registered but only 18,000 vouchers were redeemed.

The Independent said they regretted that not everyone had a better choice of DVD, particularly because there must have been many Independent readers who were unable to get their choice of DVD. They said, however, they were confident that had Play.com been able to obtain further supplies for the other nine films they would have done so and if it had not been for the extraordinary number of registrations, the suppliers would not have refused to supply further DVDs.

They said they believed their original confidence in Play.com as a reputable company had been confirmed by the manner in which they dealt which the unexpected demand. They said they believed the offer had been hijacked by those who placed the passwords on other websites. They said the fact that Play.com had dealt with the 67,000 registrations in an able and timely manner and supplied each of the 18,000 people who redeemed their voucher with a DVD was a testament to Play.com's planning and administration. They said given the numbers involved they believed there had been relatively few complaints.

Assessment

Not upheld

The ASA acknowledged that some readers would have been disappointed not to have been able to obtain their first choice of DVD, particularly because for many readers only one DVD had been available. We noted over half of respondents had received the DVD of "A Very Long Engagement". However, we also noted that Play.com and the Independent had taken steps to estimate the likely demand based on similar promotions run in the past and that the increase in demand above those estimates was created when passwords for the offer were placed on websites, which anyone could use. In addition, we noted Play.com's figures showed that significant numbers of the other nine DVDs had been sent out; over 10% above the original estimate of demand for each DVD.

We considered that the text in the small print of the promotion "In the event of excess demand for any given title you may be required to select an alternative" made clear that respondents might not receive their first choice of DVD. We noted Play.com had ensured, despite the unexpected level of demand, that a DVD was available to everyone who chose to redeem the voucher, even if most respondents had received the DVD of "A Very Long Engagement". In addition we noted that Play.com and the Independent had made efforts to offer a further voucher to readers who complained that they had not been able to choose from all ten DVDs.

We concluded that Play.com and the Independent had made a reasonable estimate of the likely demand and could not have reasonably anticipated the unexpected increase in demand. Because they had ensured that all those who redeemed their voucher had received a free DVD we also considered that the promotion had been administered responsibly and in such a way as to avoid unnecessary disappointment.

We investigated the ad under CAP Code clauses 27.1 (Sales promotions), 30.1 and 30.2 (Availability) and 31.1 (Administration) but did not find it in breach.

Action

No further action necessary.

Adjudication of the ASA Council (Non-broadcast)