ASA Adjudications

World Networks
The Diary House
Rickett Street
London
SW6 1RU
Number of complaints: 3
Date:14 February 2007
Media:Text Message
Sector:Computers and telecommunications

Ad
A promotional text message claimed "Orange customer, you may now claim your FREE CAMERA PHONE upgrade for your loyalty.  Call now on 0207 386 4925.  Offer ends 4th Aug.  T&C's apply.  Opt-out available".
Issue
1.  The complainants challenged whether the text message misleadingly implied it was from Orange.

2.  One complainant challenged whether the message was misleading, because when he called the number given in the message, he was told he was not eligible for a free upgrade.

One complainant challenged whether:

3.  World Networks Ltd had sought explicit consent before sending the message and

4.  whether the text message was misleading, because it did not tell recipients how to opt out of receiving further messages from World Networks.
The CAP Code: 7.1;43.4c

Response
1.  World Networks pointed out that the message did not state that Orange was the sender.  They explained that the text addressed recipients as Orange customers because the message had been sent to numbers assigned to Orange.  They argued that, because their automated telephone answering system answered all incoming calls "Thank you for calling World Networks" and because all sales staff answered calls "Good morning/afternoon, World Networks", consumers would understand that the message was not from Orange.

2.  World Networks argued that the claim "you may now claim your FREE CAMERA PHONE upgrade ... T&C's apply" implied that customers were possibly but not automatically eligible for the upgrade and that they would need to meet the terms and conditions before they could receive it.  They said they had explained to the complainant when he called that, because he had recently received an upgrade, he would not be eligible again for another 10 months.

3.  World Networks said they had checked their database and found they had a different name for the complainant's number.  They apologised and said the message had been sent because of human error.  They said they had put measures in place to ensure the mistake was not repeated.  In a telephone conversation, they explained they bought lists of numbers from a marketing company and the only information they held on those included in the list was the network to which they subscribed.

4.  World Networks explained that customers could call the local rate number included in the message to request to be taken off their list.  They argued that the call would cost less than a standard text message, which was the standard method to opt out of receiving further messages.  They said they provided a web address as the sender ID for the message and explained that customers could contact them via the website at no cost.  They thought both methods were acceptable under guidelines provided on the Privacy and Electronic Communications (EC Directive) Regulations 2003.
Assessment
1.  Upheld
The ASA considered that recipients were likely to assume from the text "for your loyalty" that the senders were working directly with Orange to reward long-term customers.  Because we understood that was not the case, we concluded that the message was misleading.

2.  Upheld
We noted that the message stated "T&C's apply" but considered that the overall impression created by the claim "you may now claim your FREE CAMERA PHONE upgrade" was that all recipients were able to claim an upgrade and not that they might be able to do so.  We concluded that the message was misleading.

On points 1 & 2, the ad breached CAP Code clause 7.1 (Truthfulness).

3.  Upheld
We noted that World Networks had, without having obtained their explicit consent, contacted recipients with whom they had not previously negotiated a sale.  We concluded that the message had been sent without proper consent.

4.  Upheld
We noted World Networks' arguments but considered that the message did not make clear that customers could call the sales number or access the website to opt out.  We noted that the Information Commissioner's Office had produced guidance on the Privacy and Electronic Communications (EC Directive) Regulations that stated marketers should provide a postal or email address or a short code number to which recipients could send an opt-out message.  We concluded that the message did not give recipients a clear or simple means of opting out of receiving future messages.

On points 3 & 4, the ad breached CAP Code clauses 7.1 (Truthfulness) and 43.4c (Database practice).
Action
We told World Networks to obtain explicit consent from recipients before sending such text messages in future and reminded them that they should provide a clear and simple means for recipients to opt out of receiving future messages.  We asked them to seek guidance from the CAP Copy Advice team before advertising in future.

Adjudication of the ASA Council (Non-broadcast)

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