Background
Summary of Council decision:
Two issues were investigated of which both were Upheld.
Ad description
A text message stated "Records passed to us show you're entitled to a refund approximately £2130 in compensation from mis-selling of PPI on your credit card or loan. Reply INFO or stop"
Issue
The complainant, who had received the text message, objected that:
1. the text message was unsolicited; and
2. the ad was misleading, because the advertiser did not hold any such records about him.
Response
Cryton Ltd (Cryton) told us they did not send text messages and they never had, but that they had previously acted as a broker for SMS leads and one of the numbers they had bought was that of the complainant. They told us that they had proof that they had bought the lead and a contact e-mail address for the company they had purchased it from, but failed to produce this information when requested. They accepted that a LinkedIn account associated with their contact e-mail address had made comments in a forum that included "Did an SMS campaign to a clients website over the weekend we sent 1,000,000 numbers and it cost him £4000" but told us that the comments had been made by an employee, who had simply passed on what the companies they brokered for had told him, and that they did not send messages themselves.
Assessment
Upheld
The ASA acknowledged that Cryton denied responsibility for sending the text message to the complainant. However, we noted that they had been identified as the sender of the SMS message by the claims management company who had ultimately bought the lead and that they had declined to provide any evidence to demonstrate that they had bought the lead themselves. We therefore considered that they were responsible for sending the message. In the absence of any evidence that appropriate consent had been received prior to the marketing communication being sent, or that records were held about the recipient, we concluded that the ad breached the Code.
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) 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 ad must not appear again in its current form. We told Cryton to ensure that appropriate consent had been given before sending out marketing communications by text message, and not to imply that they held personal information about recipients unless this was the case.
