ASA Adjudication on Telegraph Media Group Ltd

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A front-page flash on the Sunday Telegraph stated "FREE INSIDE DR WHO AUDIOBOOK READ BY DAVID TENNANT". Further details about the promotion inside the paper stated "FREE AUDIOBOOK TOMORROW PART 2 READ BY DAVID TENNANT ... Don't miss The Daily Telegraph from tomorrow to claim five more free audiobooks. Pick up at WH Smith or we can post you the whole set*". Footnoted text linked to the asterisk stated "WH Smith high street stores only. Terms and conditions apply, see Monday's newspaper for details".

The terms and conditions to the promotion, inside Monday's Daily Telegraph, stated "This week, you can complete your collection with a new, free Doctor Who audiobook every day, until Friday. Cut out the coupon every day and present it at your nearest WH Smith high street store to claim that day's free audiobook. Alternatively, we can post you the whole set ... you can have all seven Doctor Who audiobooks sent to you by post. Fill in any one of the coupons printed until Friday, and send it along with payment of £12.99 (inc postage)...".

Issue

1. One complainant challenged whether the front-page flash on the Sunday Telegraph was misleading, because it did not make clear that the audiobook came in two parts and that part two would be included in Monday's paper.

2. Another complainant challenged whether the claim that the audiobooks were "free" was misleading, because customers who did not live near a WH Smith store would have to pay £12.99 to receive the audiobooks by post.

CAP Code (Edition 11)

Response

1. The Telegraph Media Group (TMG) said, because of an oversight, the Sunday Telegraph front-page flash had not made clear that the CD was first of a two-part story and that the second part would be redeemable at WH Smith. They explained that they sent part two free of charge to all those readers who had contacted them directly. They apologised for the error and said they had taken steps to prevent a similar mistake in the future.

2. TMG said throughout the week of the promotion, all the front-page flashes had stated that the CDs were redeemable at branches of WH Smith, which was a nationwide retailer with over 500 branches. They believed that there were no costs attached to the redemption, other than buying the newspaper and reasonable travel expenses, which they understood was acceptable under the CAP Code.

Assessment

1. Upheld

The ASA considered that the front-page flash "FREE INSIDE DR WHO AUDIOBOOK" implied that a complete audiobook was available inside the newspaper. We understood, however, that the claim related to the first part of the story only and that the second part was redeemable at WH Smith the following day. We noted that, due to an error this information was not included in the front-page flash, but nonetheless considered that, because that significant qualification to the offer was not made clear to readers at the point at which they were introduced to the offer, the front-page flash was misleading.

On this point the front page flash breached CAP Code clauses 7.1 (Truthfulness) and 32.5 (Free offers and free trials).

2. Upheld

We considered that the claim "Pick up your free Doctor Who audiobook today. Pick up from WH Smith or we can post it to you" would be understood by consumers to mean that the audiobooks themselves were free regardless of whether they chose to collect them in store or by post.

We noted the CAP Code stated that an offer should be described as free only if consumers paid no more than the minimum unavoidable cost of responding to the promotion, such as the current public rates of postage or the cost of any travel involved in collecting the offer. We considered that it was acceptable for the offer to be described as free for those readers collecting the audiobooks from WH Smith, because consumers would only be liable to pay the cost of any travel involved. However, we noted we had not seen evidence that demonstrated that £12.99 represented the minimum cost of postage for the audiobooks. We also noted the terms and conditions to the offer stated ... Fill in any one of the coupons printed until Friday, and send it along with payment of £12.99 (inc postage) ...", which we understood to mean that the £12.99 fee included a charge for the cost of the audiobooks themselves. We therefore considered that the audiobooks were not free to those consumers who took up the offer through the postal route. Because the audiobooks were not free to all respondents, we concluded that the claim that the audiobooks were "free" was misleading.

On this point, the front page flashes breached CAP Code 3.1 (Substantiation), 7.1 (Truthfulness) and 32.5 (Free offers and free trials).

Action

The front-page flashes must not appear again in their current form.

Adjudication of the ASA Council (Non-broadcast)