An online pop-up survey included the text "You've been selected to take part in an anonymous survey … Tell us what you think of [brand] in this 30 second survey, and to say 'thank you', we'll offer you a [sic] exclusive giveaways”. Small print stated "We are not affiliated nor partnered, with [brand]. [Brand] has not authored, participated in, or in any way reviewed this advertisement or authorized it. The trial products on the last page pay this website for orders placed. See important terms and conditions regarding this ad here". The text "here" included a hyperlink, which, when clicked, led to an error message.
The complainant, who completed the survey and was informed she was eligible to receive a free iPod shuffle in return for the cost of postage, challenged whether the promotion was genuine, because she did not receive the iPod and further payments were taken from her bank account.
Wippy.com (Wippy) said they worked with many advertising partners, including affiliates and affiliate networks. They said they had strict guidelines and detailed descriptions and restrictions for campaigns, however, they could not guarantee that all of their partners and their affiliates would adhere to those rules. Wippy said the ad was a pop-up, which would appear because the code that allowed them was installed on the server of the website being viewed at the time or on the consumer's own computer. They said the Code was not installed by them and the ad in question was not one they provided or distributed. If the ad was redirecting traffic to their website, it was being done without their knowledge or consent. They said the URL of the survey was not owned by Wippy and there was no content related to Wippy when they subsequently attempted to complete the survey, which might be because they had ended all activity in the UK in late May 2013.
The ASA noted that CAP Code rule 1.8 stated that primary responsibility for observing the Code fell on marketers, and that others involved in preparing or publishing marketing communications, such as agencies, publishers and other service suppliers, also accepted an obligation to abide by the Code. We noted Wippy's belief that they were not responsible for the ad, which the complainant saw in May 2013. We considered, however, that Wippy had primary responsibility for ensuring the ad complied with the Code, because the ad resulted in payments being taken from the complainant's bank account in Wippy's name and we understood they therefore benefited every time a consumer signed up as a result of clicking on the ad.
We considered consumers would understand from the presentation of the ad that they were entitled to receive the gift described if they followed the required steps and that they would not incur additional or ongoing costs as a result. We were concerned that the complainant did not receive the iPod, which was described as "free", but the need for consumers to commit to a monthly membership to obtain it was not made clear. In addition, we were concerned that the ad claimed the complainant was entitled to a gift, but to claim it she had to pay the cost of postage. For the reasons given, we concluded that the ad breached the Code.
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), 3.23 3.23 Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer. (Free), 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions), 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: and 8.17.1 8.17.1 How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion (Significant conditions for promotions) and 8.21.1 8.21.1 Promoters must not falsely claim or imply that the consumer has already won, will win or will on doing a particular act win a prize (or other equivalent benefit) if the consumer must incur a cost to claim the prize (or other equivalent benefit) or if the prize (or other equivalent benefit) does not exist. and 8.27 8.27 Withholding prizes (see rules 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. .1 and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. .2) is justified only if participants have not met the qualifying criteria set out clearly in the rules of the promotion. (Prize promotions).
The ad must not appear again in its current form. We told Wippy to ensure their future advertising did not claim consumers had won a prize or equivalent benefit if the consumer must incur a cost to claim it. We also told them to ensure significant conditions of promotions, including the extent of any commitment required to take advantage of any free offer, were made clear in future.