Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Two text messages from a payday loans company:
a. The first, received on 6 November 2013, stated "If you need £200 today and can afford to pay back on your payday then unlock it TODAY with us at www.paydayunlocked.com - We trust you. ReplyStop2End".
b. The second, received on 14 December 2013, stated "We can offer you up to £400 to help with Christmas this year. Verify your details at www.paydayunlocked.com and we can transfer your money within 15 minutes".
Two complainants, who had each received one of the text messages, challenged whether the text messages:
1. breached the Code, because they were unsolicited; and
2. were irresponsible, because they believed they trivialised the taking out of a payday loan.
Nouveau Finance Ltd said they were a broker platform that provided access to a panel of lenders for their affiliate partners to connect to. They said the text messages were sent by an affiliate, AMC Marketing Ltd, and they had contacted them to obtain the opt-in information but stated it had not been provided.
AMC Marketing did not respond to the ASA's enquiries.
The ASA understood that Nouveau Finance controlled the website to which the messages directed recipients at the time the messages were sent and had employed AMC Marketing to send marketing messages on their behalf. We considered that, as the company receiving the benefit of having consumers directed to a website under their control, Nouveau Finance had a duty to ensure that any party employed to promote that website did so in accordance with the CAP Code. We therefore considered that Nouveau Finance should be considered to be responsible for the ads, in association with AMC Marketing.
We noted that no evidence had been supplied to demonstrate that the complainants had given appropriate consent to receive the text messages and therefore concluded that the ads had breached the Code.
On that point, the ads breached the 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).
We considered that taking out a high-interest, short-term loan was a step that should only be taken following careful consideration and considered that marketers should take care to advertise those products responsibly. We noted that both of the text messages referred to consumers being able to receive money within a very short amount of time ‒ within a day in ad (a) and within 15 minutes in ad (b) ‒ and considered that this gave the impression that the decision to take out a payday loan was one that could be approached without forethought or detailed consideration. Furthermore, we considered that the text "We trust you" in ad (a) suggested that Nouveau Finance did not need to know about consumers' individual circumstances or financial situations in order to grant them a loan and therefore contributed to that impression. Although we acknowledged that ad (a) referred to the fact that consumers should be able to pay back the loan by their payday, in the context of the claims highlighted above we did not consider that that was sufficient to highlight the many factors that should be taken into account when making the decision to take out a payday loan.
Because we considered that both text messages made light of the decision to take out a payday loan, we concluded that the ads were irresponsible.
On that point, the ads breached the CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Responsible advertising).
The ads must not appear again in their current form. We told Nouveau Finance Ltd and AMC Marketing Ltd to ensure that appropriate consent had been given before sending, or employing others to send on their behalf, marketing communications by text message, and to ensure that their future advertising was prepared with a sense of responsibility to consumers and society.