Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A text message stated "TRAPPED or FROZEN Pension? Release large cash sum NOW! Achieve high growth yield. Reply PENSION for info or STOP to opt out".
Issue
The complainant challenged whether the ad breached the Code because it:
1. was sent unsolicited; and
2. omitted the identity of the marketer.
Response
Clarity Leads Ltd (Clarity Leads) said they did not send text messages but had previously acted as a broker for SMS leads.
Assessment
The ASA acknowledged that Clarity Leads denied responsibility for sending the text message to the complainant. However, we noted they had been identified as the sender of the message by the claims management company who had ultimately bought the leads and who had provided us with evidence that they had purchased "Pension SMS Positives" from Clarity Leads. We therefore considered that Clarity Leads was responsible for sending the message.
1. Upheld
In the absence of any evidence that appropriate consent had been received prior to the text message being sent, or that records were held about the recipient, we concluded that the ad breached the Code.
On this point the ad breached CAP Code (Edition 12) rules 10.3 10.3 Marketers must do everything reasonable to ensure that, if asked in writing, consumers or the ASA (with consent of the consumer concerned) are given available information on the nature of a consumer's personal information and from where it has been obtained. 10.4.2 10.4.2 marketing communications are not sent unsolicited to consumers if explicit consent is required (see rule 10.13) and 10.13.3 10.13.3 sending marketing communications by electronic mail (excluding by Bluetooth technology) but marketers may send unsolicited marketing about their similar products to those whose data they have obtained during, or in negotiations for, a sale. Data marketers must, however, tell those consumers they may opt out of receiving future marketing communications both when they collect the data and at every subsequent occasion they send out marketing communications. Marketers must give consumers a simple means to do so (Database practice).
2. Upheld
The text message did not contain information about the identity of the marketer and we therefore concluded that it breached the Code.
On this point the ad breached CAP Code (Edition 12) rules
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising) and
10.6
10.6
Marketing communications sent by electronic mail (but not those sent by Bluetooth technology) must contain the marketer's full name (or, in the case of SMS messages, a recognisable abbreviation) and a valid address; for example, an e-mail address or a SMS short code to which recipients can send opt-out requests.
(Database practice).
Action
The ad must not appear again in its current form. We told Clarity Leads Ltd to hold the explicit consent of consumers before sending text messages in future. We also told them to ensure that future text messages included details of their identity.
