Yes Mobiles t/a Express Mobiles 11 Dragoon House Hussar Court Waterlooville Hampshire PO7 7SF Number of complaints: 3

Date: 5 September 2007 Media: Text Message Sector: Computers and telecommunications

Ad
A text message, for phone services, stated "ORANGE CUSTOMER: YOU HAVE BEEN SELECTED FOR A COMPLETELY FREE PHONE. 1ST COME 1ST SERVED. CALL NOW ON XXXX ... ".

Issue
1. Three complainants, who contacted the number but were told that they had to sign an 18-month contract on a new tariff to obtain the free phone, challenged whether the text message was misleading, and

2. one complainant challenged whether the advertisers identity was clear.

The ASA challenged whether:

3. Express Mobiles had obtained explicit consent before sending the message, and

4. the text message was misleading, because it did not tell recipients how to opt out of receiving further messages from Express Mobiles.

The CAP Code:

7.1;22.2;43.4;32.1;32.3

Response
Express Mobiles explained that the text message was prepared and sent, in the absence of the marketing manager, by a member of staff who had not understood the full requirements of the CAP Code.  They explained that they had now initiated a procedure, so that only the marketing manager or a Director could authorize a text message to be sent.

They believed the message was not misleading, because as soon as the customer contacted them Express Mobiles identity and full details of the package were made clear.  They said the telephone was free and in addition they had a cheque-back procedure which covered the line rental for the term of the contract.  They said all calls were recorded and they now supplied a freephone telephone number in the text message for customers to call.  

They confirmed that the numbers they had used for marketing purposes had been purchased from various data providers, and, as far as they were able to confirm with those providers, the numbers were opt-in.  They also pointed out that they were members of the Corporate Telephone Preference Service.

Assessment
1. Upheld
The ASA considered that the text message did not make clear that consumers would have to take out a new 18-month contract to take up the offer of the free phone.  We considered that that information was necessary to ensure recipients had a full understanding of the promotion and we concluded that the promotional text message was misleading.

On point 1, the ad breached CAP Code clause 7.1 (Truthfulness).

2., 3. & 4. Upheld
We noted the text message contained no information about the identity of the sender or how to opt-out from receiving messages.  We noted Express Mobiles explanation that the text message was sent by a member of staff who was unaware of the Codes requirements and that they had always included an opt-out option in the past.  We noted Express Mobile had purchased details of Orange customers from various data providers and that they believed they were opt-in.  However, we considered that, in the absence of any information to the contrary, the text message was unsolicited because recipients did not seem to have an active relationship with Express Mobiles, nor were they customers of Express Mobiles but of Orange. We therefore concluded that the text message breached the Code by being unsolicited and by not identifying the sender or including an opt-out option.

On points 2., 3 & 4, the ad breached CAP Code clauses 7.1 (Truthfulness), 22.2 (Recognising marketing), 32.1 and 32.3 (Free offers and free trials) and 43.4 (Database practice).

Action
We told Express Mobiles to include significant conditions in future message offers and to obtain explicit consent from recipients before sending text messages.  We reminded them that they should identify themselves and 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)