Background
Summary of Council decision:
Five issues were investigated all of which were upheld.
Ad description
Two text messages, one from txt4payday.com and the other from paydaypenguin.co.uk; both were companies that offered instant loans:
a. The text message from txt4payday.com featured text which stated "Do you need CASH B4 payday? £400 deposited in your account TODAY! Visit www.txt4payday.com and receive CASH in 1 HR ! Existing Loans ok. To Decline reply STOP".
b. The text message from paydaypenguin.co.uk, featured text which stated "Do you need CASH B4 payday? £400 deposited in your account TODAY! Visit www.paydaypenguin.co.uk receive CASH in 1HR! Existing loans ok. Decline reply STOP".
Issue
1. One complainant objected that the SMS marketing communication, ad (a), they had received was unsolicited and that they had not given their consent to receive marketing by SMS.
2. The same complainant also challenged whether the claim that recipients could "Visit www.txt4payday.com and receive CASH in 1 HR", in ad (a), was misleading and could be substantiated.
3. A second complainant objected that the SMS marketing communication, ad (b), they had received was unsolicited and that they had not given their consent to receive marketing by SMS.
The second complainant also challenged whether:
4. the implication, in ad (b), that £400 could be deposited in their account within one hour was misleading and could be substantiated; and
5. the "STOP" function, in ad (b), was genuine, because despite having replied "STOP" to the message, they continued to receive it.
Response
1. & 3. Get it Back (GIB) said one of the complainants had opted into receive the text message via an oral survey. However, they did not provide evidence to demonstrate that.
2. & 4. GIB said the claim "receive CASH in 1 HR" had been taken from the statements shown on the loan providers' websites and therefore believed the claim had been substantiated.
5. GIB believed the message had been sent by the network on several occasions.
Assessment
1. & 3. Upheld
The ASA noted the CAP Code required the explicit consent of consumers before sending marketing communications by electronic mail. We noted the complainant's comments that they had not given their explicit consent to receive the ads. We acknowledged GIB's comments that one of the complainants had opted in to receive the text message. However, we were concerned that we had not seen any documentary evidence to demonstrate that either of the complainants had given their consent.
On that basis, we concluded that the ads breached the Code.
On points 1. & 3., the ads breached CAP Code (Edition 12) rules 10.4 10.4 Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media. To avoid making persistent and unwanted marketing communications, marketers must do everything reasonable to ensure that: 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
Because we had not seen any evidence to demonstrate that consumers received cash within one hour of submitting a loan application via www.txt4payday.com, we concluded that the ad was misleading.
On this point, ad (a) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
4. Upheld
Because we had not seen any evidence to demonstrate that £400 could be deposited in the complainant's bank account within one hour of submitting a loan application via www.paydaypenguin.co.uk, we concluded that the ad was misleading.
On this point, ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
5. Upheld
We noted the CAP Code required advertisers to ensure that marketing communications were not sent to consumers who had asked not to receive them. We were therefore concerned that, despite having replied "STOP" to the message they received, the complainant continued to receive it.
Because we had not seen any evidence to demonstrate that the "STOP" function, in ad (b), was genuine, we concluded that the ad breached the Code.
On this point, ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 10.4 10.4 Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media. To avoid making persistent and unwanted marketing communications, marketers must do everything reasonable to ensure that: 10.4.4 10.4.4 marketing communications are not sent to consumers who have asked not to receive them (see rule 10.5) or, if relevant, who have not had the opportunity to object to receiving them (see rule 10.9.3). Those consumers should be identifiable 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).
Action
The ads must not appear again in their current form. We told GIB to ensure they held robust substantiation to support claims in future and also told them to ensure they did not send marketing communications to customers who had asked not to receive them.
CAP Code (Edition 12)
10.13.3 10.4 10.4.2 10.4.4 3.1 3.7
