An internet display ad for Booking.com, seen on 4 August 2012, stated "Portland Heights Hotel & Leisure Centre 102£ save 235£ for 2 nights". The ad included an image of a resort with the words "Last rooms" below it, and a click through link labelled "BOOK NOW".
The complainant challenged whether rooms were available at £102.
Booking.com BV (Booking.com) said the ad contained a "real-time" rate based on the check-in/check-out data stored in the complainant's cookie. They said the vast majority of their re-targeted ads displayed accurate rates and that the cache that fed the prices to those ads was updated when rates became unavailable. However, occasionally there would be differences between the data stored in the cache and the data stored on their booking system, because the amount of data that needed to be updated regularly made it impossible to maintain 100% accuracy. They said consumers would (or should) understand that a price might become unavailable due to fluctuations in the room rate and limited availability. They said their system did not keep track of historic price and availability data and that they could not therefore identify when the advertised price became unavailable.
The ASA understood that consumers who visited the Booking.com website and entered specific search criteria would have that information stored in a cookie (a small piece of data sent from the website that could later be retrieved) on their web browser. That information about their previous search activity could then be used to generate ads that were likely to be of greater interest to them, which would appear when they visited other websites.
We understood the frequency with which the price and availability of hotel rooms changed meant that the data used to produce Booking.com's re-targeted ads would not always be up-to-date. That meant that consumers who saw one of the ads and either followed the link or navigated to the website independently could find that the hotel they saw advertised was not available, or was not available at the advertised price, on the dates they had originally searched for.
We considered that, irrespective of whether consumers understood that an ad had been re-targeted to them, they would expect the price shown to be available at the time they saw the ad. Because the complainant had not been able to obtain the offer as advertised, and because Booking.com had not substantiated that that price was available at the time the complainant saw the ad, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (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 3.29 3.29 Marketers must monitor stocks. If a product becomes unavailable, marketers must, whenever possible, withdraw or amend marketing communications that feature that product. (Availability).
We told Booking.com to ensure they held adequate evidence to demonstrate that hotels were available at the advertised prices in future.