Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A website for GetAgent, www.getagent.co.uk, an estate agent referral site, seen on 21 June 2023. The homepage stated “Find the best Estate Agent for you. See which agents will do the best job of selling your home, based on past performance”. Text underneath stated “Impartial recommendations”. Text further down the page stated “Independent: The agents listed are based on performance data from the Land Registry. Agents don’t pay to appear”.
Another web page included a shortlist of recommended agents after inputting an address. The first three listed agents included information on the average sale time; the asking price change; the fee quote; and the services the agency offered. Underneath each listing, a green box stated “Request Free Valuation”. The bottom three listings on the shortlist included information about the average sales time, the number of properties listed in the last six months and the asking price change. It stated no data was available for the fee quote or services offered by those agents, and the “Request Free Valuation” button was also not available. An orange box alongside the text “Most Experienced” appeared across one of the listings.
RE/MAX Property estate agents challenged whether the:
1. top three search results on the shortlisted agents page were obviously identifiable as marketing communications; and
2. claims “impartial recommendations” and “agents don’t pay to appear” were misleading and could be substantiated.
1. & 2. GetAgent Ltd said they compiled data from house selling websites and cross-referenced it with data from the Land Registry to assess any given estate agent’s performance. They said their system recommended six estate agents near to where the property was being sold and that these recommendations were based on a number of factors, including the average time it took to sell a property and the percentage of the asking price received.
GetAgent said the shortlist was hyper-localised and varied depending on the performance data. They said the shortlist was comprised of a mix of estate agents who were signed up with GetAgent and estate agents who were not. They highlighted that the default view of the shortlist was in alphabetical order and whether GetAgent were able to facilitate the homeowner’s valuation request. The order was not indicative of performance and banners were used to highlight top performers in their respective categories such as “most experienced”, which the complainant was described as. They explained that their impartial recommendations were based on those performance banners. Furthermore, they confirmed that agents could not pay for the banners to appear in their listing and, consequently, they believed the shortlist should be regarded as an organic search listing.
GetAgent said that the shortlist could be ordered in any way a homeowner preferred, such as listing the agents that had listed the most properties. They re-iterated that the shortlist showed the top six performing agents regardless of whether they were registered with GetAgent. In cases where an agent was not registered with GetAgent, the “request a valuation” button was not present because they were not able to make the introduction.
They said, due to the data available, each shortlist would differ and that, in certain cases, no estate agents registered with GetAgent would appear in the shortlist. They provided an example of an estate agent who was registered with GetAgent and had not appeared on a particular shortlist, but sold homes in a similar area. They said that the website allowed homeowners to add any estate agent they wanted in order to compare them to others on the shortlist; however, they could not request a valuation from that agent. GetAgent believed that this example demonstrated their impartial recommendations and substantiated the claim “agents don’t pay to appear”.
The CAP Code stated that marketing communications must be obviously identifiable as such, and they must make clear their commercial intent if that was not obvious from the context.
We understood that the listings of agents who were signed up with GetAgent would appear with the ‘Request Free Valuation’ button and that, as default, the shortlist was ordered according to whether GetAgent were able to facilitate the homeowner’s valuation request; namely, whether they were signed up to the service. Therefore, agents who were signed up to GetAgent were listed in alphabetical order, followed by those not signed up to the service and featured less information than the other agents.
Estate agents registered with GetAgent were required to pay a fee based on the final selling price of the property for every successful referral arranged by GetAgent. Because GetAgent received a fee in those cases, we considered the listings in the ad for those agents registered with GetAgent were marketing communications. We acknowledged that consumers could order the shortlist in any way they wished, and that, if the default order was changed, agents signed up with GetAgent would not necessarily appear at the top of the search listings. However, as GetAgent could only facilitate the homeowner’s valuation request with those agents, and GetAgent received a fee for every successful referral, we considered these listings were still marketing communications, even if they were no longer appearing in a preferential position.
We then considered whether these results were obviously identifiable as marketing communications and whether it made clear its commercial intent.
We acknowledged that the search listings of agents who were not signed up with GetAgent featured neither the “Request Free Valuation” button, nor data detailing the fee quota or services offered by the agent. However, we did not consider the absence of certain information in the listing made it clear to consumers that GetAgent would receive a percentage of every successful sale.
Due to the absence of any prominent identifiers, we considered the ad did not make clear upfront its commercial intent and concluded it was not obviously identifiable as a marketing communication. The ad therefore breached the Code.
On that point the ad breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
The ad stated “impartial recommendations” and “agents don’t pay to appear”. We considered consumers would understand that GetAgent was an independent service that allowed consumers to sell their home by inputting a particular address and information about the property including the number of bedrooms and its estimated worth. We further considered consumers would expect that GetAgent would then recommend estate agents, personalised to information inputted by consumers and based on objective data, and that agents could not pay to appear in a preferential position on a particular shortlist. We also considered consumers would infer that the listings were ordered in terms of an agent’s suitability for the sale of their specific property, and that the order was representative of GetAgent’s impartial recommendations, along with the additional banner which highlighted an agent as “most experienced”. Additionally, certain listings contained additional information, such as the fees and other services offered, and also included a “Request Free Valuation” button, which consumers would understand allowed them to receive more detail on the sale of their property directly from those specific estate agents. Within the context of the claims, we considered consumers would interpret the ‘default’ view of the shortlist as displaying the overall best estate agent for that particular property at the top of the shortlist, with the least appropriate agent being listed at the bottom.
We acknowledged that it was not possible for agents to pay for the “most experienced” banner and that, after receiving the shortlist in the default order, the results could be ordered by consumers in a number of different ways; for example, in order of those who had listed the most properties within a six-month period. However, as referenced above, GetAgent received a commission from every successful property sale generated through the website, and consequently, we considered those agents had paid to appear ahead of agents who were not signed up with GetAgent in a preferential position on the default shortlist. Because of that, we considered that the default order of the search results was not based on objective data or ordered from most to least suitable agent, as consumers would have expected. We therefore considered the mechanics behind the way in which the search listings appeared in the ad were insufficient to substantiate the claims “agents don’t pay to appear” and “impartial recommendations”.
Furthermore, the listings for agents who were signed up with GetAgent appeared with the “Request Free Valuation” button and contained additional data, such as fee quota and services offered by the agent. We therefore considered consumers would have to independently visit the website of those agents not signed up with GetAgent in order to contact them and understand more about them. As such, we considered consumers were less likely to contact one of those agents. Because GetAgent only allowed consumers to directly contact those agents who had paid a fee, and only published a full data set for those agents, we further considered that the search listings in the ad did not represent “impartial recommendations”.
We therefore concluded that the claims “impartial recommendations” and “agents don’t pay to appear” were misleading and could not be substantiated.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 3.7 (Substantiation).
The ad must not appear again in its current form. We told GetAgent Ltd to ensure that their future ads were obviously identifiable as marketing communications and that the commercial intent was made clear. We also told them to not to claim that they offered impartial recommendations or that agents did not pay to appear if that was not the case.