ASA Adjudication on MCOM Ltd

Ad

A prize draw on the website 4shared.com stated "No joke! You are selected now! You are online on: 06 November 2008 at 05:34 p.m. That's why you have just been selected as a potential winner of an Audi A3. If selected, please click here: www.selected-winner.co.uk ". On following the click through mechanism to selected-winner.co.uk, participants were asked to register their details in a four-step process for a chance to win the car. On the opening page, another click-through was labelled "Terms and Conditions"; text beneath the link clarified, for example, the name and address of the company behind the prize draw, Planet49, those eligible to participate and also that no purchase was necessary to participate. While proceeding through the registration, a pop-up ad appeared.

The pop-up ad stated "BIG LUCKY DRAW … Are You Feeling Lucky? This is your chance to win a fantastic £1,000 prize of your choice every month with the Big Lucky Draw!" Readers were asked to complete their mobile number and select their mobile network from a drop-down menu. An empty tick box, which stated "I accept the Terms and Conditions" was provided together with a click through mechanism to those terms. Two further links were labelled "CLICK TO ENTER" and "NO THANKS". The terms and conditions attached to the Big Lucky Draw stated "… The Big Lucky Draw is a subscription service but will only cost £1.50 to join, and only £1.50 per month via reverse billed SMS to your mobile phone. You can stop this service at anytime [sic]. To unsubscribe simply send the word STOP to the SHORT CODE from which you received the message. The service is run by MCOM ltd …".

Issue

The complainant challenged whether:

1. it was sufficiently clear that the Big Lucky Draw offer was a separate ad to the prize draw for the Audi A3 in which it appeared, and

2.  significant terms and conditions of the Big Lucky Draw, that it was part of a subscription service, which a involved monthly payment, should have been included in the pop-up ad.

CAP Code (Edition 11)

Response

MCOM explained that the Big Lucky Draw was a mobile subscription service, which offered users the opportunity to be notified of a monthly prize draw with the chance to win a prize valued at £1,000 each month.  To join the service, the user needed to opt in by completing the fields manually.  This included indicating agreement with the terms and conditions (Ts and Cs), which contained all relevant information to allow users to make an informed decision or to contact MCOM with any questions.  They said if users decided that they were not interested, they could close the pop-up in two ways, either by clicking the large "NO THANKS" button or by using the standard "X" box in the top right-hand corner.  The pop-up ad could, therefore, be easily ignored or dismissed.

If a user completed their details, ticked the Ts and Cs box and pressed the "CLICK TO ENTER" button, they were still not opted in as they needed to respond to one of two messages sent to their phone.  If they responded and opted in via text message, they would have been informed of and agreed to the terms of the service twice, both online and from their mobile phone.  MCOM explained that this procedure ensured that all users of the service were double opted in and they had made every possible effort to allow them to make an informed decision.  

1.  MCOM explained that no purchase was necessary to enter the draw to win the Audi and that that was clearly stated in the Ts and Cs attached to the draw by Planet 49.  They said the pop-up ad, which appeared during the registration process, was clearly dismissible if those registering for the Audi draw were not interested in its' contents.  They explained that pop-up ads were commonly recognised, and that on this occasion, when the pop-up ad appeared, the continuing Planet 49 registration process was clearly visible underneath it.  They believed it was clear that the Big Lucky Draw was a separate offering which could be easily judged and declined.    

2.  MCOM pointed out that the Ts and Cs, which had to be agreed to, clearly stated "The Big Lucky Draw is a subscription service ..." and gave full details and costing information.  Even if the Ts and Cs were overlooked, a user would not be subscribed into the Big Lucky Draw until they had responded to a text message, which would again outline the Ts and Cs of the subscription service on offer.  They believed it was clear that the Ts and Cs of the service must be manually agreed and what those Ts and Cs entailed.

Assessment

1.  Not upheld

The ASA understood that the pop-up ad for the Big Lucky Draw appeared during the registration process for a prize draw to win an Audi A3.  We understood the complainant's concern, because the Audi entry carried no obligation, whereas entry into the Big Lucky Draw was conditional on a monthly subscription.  

We considered, however, that although the pop-up appeared while participants for the Audi draw were completing their details, the ad clarified what it represented by text that stated "This is your chance to win a fantastic £1,000 prize of your choice every month with the Big Lucky Draw!".  We considered that entrants would recognise that the pop-up represented a separate competition to the one with which they were already engaged.   We also noted, were they to dismiss the pop-up by selecting the "NO THANKS" option, participants were able to continue with the completion of their Audi A3 entry.

On this point, we investigated the ad under CAP Code clauses 7.1 (Truthfulness) and 22.1 (Recognising marketing communications and identifying marketers) but did not find it in breach.

2.  Upheld

We noted the pop-up included a direct link to the Ts and Cs, which clarified that a monthly subscription was involved with entry into the Big Lucky Draw, and that participants had to agree to the Ts and Cs before their entry was accepted.  We also understood that, should players tick the box "I accept the Terms and Conditions" without having first read them, they would have a second opportunity to agree to or decline the terms of the Big Lucky Draw by responding to a text message, subsequently sent to their mobile phone.  We also noted the Big Lucky Draw service pop-up could be dismissed should players choose to click the button labelled "NO THANKS".  We, therefore, recognised the efforts taken by MCOM to advise participants fully of the nature of their service and had provided plenty of opportunity for them to decline or accept its terms.

We considered, however, that the monthly subscription requirement of entry into the Big Lucky Draw was a significant condition, which was likely to affect consumers' understanding of the draw and their decision to participate.  As a significant condition, the pop-up ad itself should have clarified that the Big Lucky Draw was a subscription service.

On this point, the ad breached CAP Code clause 34.1 (Significant conditions for promotions).

Action

The pop-up ad should not appear again in its current form.  Future, similar promotions should clarify any significant terms and conditions.

Adjudication of the ASA Council (Non-broadcast)