Background

Summary of Council decision:

Two issues were investigated, both of which were Upheld.

Ad description

A regional press ad for Kirk Estates Ltd, which featured a Venn diagram of the numbers of properties distributed across the Zoopla and Rightmove online portals. The circle representing Rightmove properties was slightly larger than that representing Zoopla properties, and portions of the diagram were labelled "Properties unique to Zoopla," "Properties on Zoopla and Rightmove," and "Properties unique to Rightmove". Underneath the diagram a table gave the number of visitors, agents and properties available on each, and stated that 554,000 and 727,000 properties were on Zoopla and Rightmove respectively. A headline stated "Different audiences use Rightmove & Zoopla that's why at Kirk Estates we use BOTH to market your property" and a footnote stated "*Source - Theadvisory.co.uk".

Issue

Spicerhaart Group Ltd, who believed that the Venn diagram presented the data in a way that implied Zoopla had a larger share of available properties than was the case, challenged whether:

1. the claim that distinct segments of the property buying public were exclusive to specific portals was misleading and could be substantiated; and

2. the way in which the data was presented was misleading.

Response

Kirk Estates Ltd stated that they had taken the number of properties on the portals from the home pages of the respective websites, and that they therefore understood these figures were accurate because they were published by the portals themselves and made available to the general public. They stated that the diagram had been sourced from the third-party website www.theadvisory.co.uk, which they described as a highly credible and recognised impartial advice site.

With regard to the claim "Different audiences use Rightmove and Zoopla", Kirk Estates stated that they carried out a survey on Facebook and other social media platforms, and also sent letters to their clients and other members of the public. They said that some individuals preferred one portal and some the other, but that the majority use one first and then the other, in order to benefit from functions on both sites. They stated that a documented survey was not required because it was a fact widely reported across property news.

Kirk Estates also provided an email from Rightmove, which post-dated the publication of the ad, stating that on 29 January there were 973,951 properties for rental and sale on the site.

Assessment

1. Upheld

The ASA considered that consumers would understand the claim "Different audiences use Rightmove & Zoopla" as an objective claim that some consumers were using one or other portal exclusively in their property search. We acknowledged Kirk Estates' assertion that they had carried out a consumer survey to determine that consumers used the portals in a variety of ways, but noted that the results of this survey were not provided. In the absence of evidence to demonstrate that the portals each had an exclusive audience not shared by the other, we concluded that the ad was misleading.

On this point the ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising),  3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.  (Substantiation).

2. Upheld

The ASA considered that the Venn diagram showing segments labelled as representing properties exclusive to each site would be understood as a statement that both portals contained property listings that were only available on that site and not on any others, and that these listings were distributed in the proportion shown on the diagram. We acknowledged the advertisers' statement that they had obtained the data relating to the total number of properties on Rightmove and Zoopla from the portals themselves, and noted that the proportions of the Venn diagram circles largely correlated to this data. However, they had not provided evidence to demonstrate that the numbers quoted in the ad were correct when they went to press. We noted that the email from Rightmove gave a figure for the number of rental and sale properties, but noted that this post-dated the publication of the ad and was therefore not held by the advertiser at the time the ad was published. Moreover, the number of sales properties alone could not be extrapolated from this figure, and pertained only to Rightmove. We understood that the advertiser had sourced the Venn diagram from a third-party site that they considered to be impartial and credible, but had not provided details of where this diagram could be found on the site or the veracity of the data supporting it. We acknowledged that the source was credited to this site but noted that, as it had been featured in a marketing communication, it was the responsibility of the advertiser to provide evidence to substantiate the accuracy of the diagram. Because we had not seen data from the time the ad was published to demonstrate how many properties were on each portal, how many were unique to each portal and that these latter numbers were represented proportionally by the Venn diagram, we concluded that the ad was misleading.

On this point the ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising),  3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.  (Substantiation) and  3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.  (Exaggeration).

Action

The ad must not appear again in its current form. We told Kirk Estates Ltd to ensure that they held substantiation for claims in future ads, including material sourced from third parties.

CAP Code (Edition 12)

3.1     3.11     3.3     3.7    


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