Ad description
A website, www.estateagentsemails.co.uk, which advertised a database containing estate and letting agency contact information, stated "The Estate Agents database has over 21,000+ UK estate and letting agency records. Data includes company names, address, phone numbers, faxes, websites and 27,000+ unique email addresses. Not a single duplicate. 21,000 mailing addresses”. To the right of the text a logo stated "GUARANTEE QUALITY". Underneath the logo, alternating text stated "Money back if monthly updates not received!", "Dont [sic] buy elsewhere unless the data is guaranteed", "No duplicate emails. Not a single one!", and "Money back if any record is duplicated!". Further text stated "Why buy from us? ... Guaranteed lists ... We have one brand, one company and one unique guarantee".
Issue
The complainant challenged whether the stated and implied claims that customers were guaranteed a refund if the database contained duplicate records were misleading.
Response
Emails Etc confirmed that the money-back guarantee was offered if customers found duplicate records in their software system. A 'record' was all the data in one row, across all columns; therefore data which appeared in one or two columns might be duplicated elsewhere, but in order to qualify for the guarantee the entire set of data in a row must be duplicated within the software. They explained the software had a database which was configured so that it would not allow duplicates and it was therefore impossible for there to be any duplicates. They provided a copy of the wording of their Software End User Licence Agreement (EULA), which customers must agree to in order to purchase the software.
Emails Etc said that, after purchasing the software, the complainant had asked if they could have the data in a raw format. They agreed, but asked the complainant to sign a further agreement (the 'Raw Data EULA') to say that if the raw data was used rather than the data from the software system, it was to be regarded as supplied 'as-is'; the money-back guarantee did not apply to the raw data. They provided a copy of the Raw Data EULA, and a copy of the raw data. They believed the complainant may have accidentally amended the raw data, resulting in duplicates.
Assessment
Upheld
The ASA noted the ad stated "Money back if any record is duplicated" and considered consumers would understand that claim to relate to the whole record comprising of the company name, address, phone number, fax number where applicable, and web address where applicable. However, we noted the ad also stated "Data includes company names, addresses, phone numbers, faxes, websites and [in bold font:] 27,000+ unique email address. [Underlined:] Not a single duplicate" and, under the logo which stated "GUARANTEE QUALITY", text stated "No duplicate emails. Not a single one!". We considered consumers would interpret those claims to mean that, in addition to the guarantee about each record as a whole, the guarantee was also that the data would contain no duplicate email addresses at all.
Whilst we noted the ad referred to the "software and database", we considered consumers would understand that the raw data underlying the software would also be free from duplicate records and duplicate emails, and therefore, if they were provided with the raw data, the guarantee would also apply to the data in that format. We therefore considered that Emails Etc must demonstrate that they would provide a refund if the raw data and/or the software included duplicate records and/or duplicate email addresses.
We understood that when customers purchased the software, they did so via a web page on Emails Etc's website, which included the Software EULA text. The complainant did not have a copy of the Software EULA they had agreed to but asserted that the wording included clauses which voided the advertised guarantee. We reviewed the wording of the Software EULA provided to us by the advertiser and noted that it included wording which made clear that if the conditions of the advertised guarantee were met, customers would be eligible for a refund. However, we were concerned that Emails Etc were unable to confirm to us when that wording of the Software EULA had been instigated and we therefore considered we had not seen adequate evidence to demonstrate that the Software EULA which applied at the time the complainant purchased the software did not include clauses which voided the advertised guarantee. We also reviewed the Raw Data EULAs provided by the complainant and Emails Etc and noted that both documents included wording which appeared to void the guarantee, although the document sent by Emails Etc also included a sentence, stating "Any guarantees offered prior to the signing of this agreement do not apply to this raw data", which was not in the document signed by the complainant. We concluded that, because consumers would understand from the ad that the guarantee covered duplicate records and duplicate email addresses in both the software and the raw data, but it appeared that the EULAs in place at the time the complainant signed them voided that guarantee, the claims in the ad about the guarantee were misleading.
Whilst we had not had the opportunity to review the software, we were able to assess the copies of the spreadsheets provided by the complainant and Emails Etc which contained the raw data underlying the software program; we considered that if those spreadsheets contained duplicate records or emails, they should fall within the guarantee stated in the ad and customers would be eligible for a refund. The complainant had pointed out records in their spreadsheet which they considered should fall under the guarantee; that included one record which was exactly duplicated, and also included some duplicated email addresses. We compared those entries with the spreadsheet provided by the advertiser. There were some differences in the spreadsheets, including that the exactly duplicated entry did not appear. However, it was not possible to judge how the discrepancies between the spreadsheets came about.
Nonetheless, we found three sets of records which appeared in both spreadsheets which we considered should have fallen under the guarantee as consumers would understand it from the advertising claims. For example, the set of records for one company included two variations of the company name, and the postal address was the same but listed in different columns. One entry did not include the fax number and the format of the web address listing was slightly different in one entry. Although there was no exact duplication across all columns, the omission of information from some columns and the failure to format all entries across columns in the same way meant that one of the listings for the company in both the spreadsheet provided by Emails Etc and the spreadsheet provided by the complainant was duplicated, and, furthermore, one e-mail address appeared twice. We concluded that Emails Etc should, therefore, have provided a refund to the complainant. Because they had not, we concluded the advertised guarantee was misleading.
The ad 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.53 3.53 Marketing communications must not use the word "guarantee" in a way that could cause confusion about a consumer's rights. and 3.55 3.55 Marketers must promptly refund consumers who make valid claims under an advertised money-back guarantee. (Guarantees and After-sales Service).
Action
The ad must not appear again in its current form. We told Emails Etc to ensure that their advertising did not state or imply that customers would be eligible for a guarantee if there were duplicate records and/or duplicate email addresses in their software, database and raw data if that was not the case.
