A circular, advertising broadband services, received in February 2017, stated in small print on the top-left of the front page "Sent by Hyperoptic Ltd. If undelivered, please return to [their address]". The circular was addressed to "The Resident" and terms and conditions of the offer were listed in small print at the foot of the front page.
Text on the back page stated "Your BT CONTRACT is about to cost you even more ..." and appeared to be in the form of a contract. At the top right of the page text stated "Your Scheme Reference Number: XXXXX Membership: XXXXXXXXXXX. A sub-heading stated "IMPORTANT: THE SERVICE AGREEMENT BETWEEN SERVICE PROVIDER AND CUSTOMER IS COMPROMISED ON FOLLOWING UNDERNEATH TERMS AND CONDITIONS; ...". An image overlaying the 'contract' stated "BREAK FREE & BEAT THE PRICE RISE". Small print at the foot of the page stated "PLEASE NOTE: THIS IS NOT GENUINE [sic] A BT CONTRACT, OBVIOUSLY."
The back page opened out and the interior contained further information about the offer.
The complainant challenged whether the ad was obviously identifiable as a marketing communication, because they believed it looked like a communication from BT.
Hyperoptic Ltd believed the ad was obviously identifiable as a marketing communication, and not correspondence from BT. They believed that all the information on the outside of the mailing clearly indicated that it was a marketing communication, was related to the fact that BT were increasing their prices for their broadband services, and was promoting an offer for Hyperoptic. In particular, the circular was addressed to "The Resident" followed by their address, whereas they believed that if it had been private correspondence regarding a contract, it would have specified the name of the recipient. The offer terms and conditions were printed on the front page of the circular, directly below the recipient's address, and they believed that also indicated that the circular was a marketing communication. The terms and conditions referenced Hyperoptic three times. On the same page as the recipient's address, text at the top left stated "Sent by Hyperoptic Ltd" followed by their return address.
The ad had mock contract language on the underside and they believed that no company would send a contract on outer packaging; it would always be put inside an envelope so that only the recipient could read it. The mock contract had a large advertising icon printed over the middle of the contract language, using Hyperoptic's brand colours and fonts, which stated "Break free & beat the price rise again". They believed that no company sending a contract to an end user would print something like that over the top of the contract. The outer cover of the ad also clearly stated "Please note: This is not genuine [sic] BT contract, obviously" with the "not" underlined to add emphasis. There was also a design of a rip or tear in the mock contract, indicating that the recipient should open the ad by tearing through or ripping up the contract, which they believed added to the impression that the communication was an ad rather than a contract. They also pointed out that the circular only mentioned BT twice and did not feature BT's logo or imagery.
Hyperoptic believed that once the circular was opened, it was very clearly a marketing communication from Hyperoptic. The content inside related to the outer design and reinforced the message that as BT were raising their prices, consumers had the opportunity to break or exit their contract with BT at no cost to them.
They said they had utilised the format and design of the circular twice before, each time to over 50,000 people, and had not previously received any complaints.
The ASA noted the text at the top-left of the front of the circular, above the recipient's address, that stated it had been sent by Hyperoptic Ltd, followed by their return address. We also noted the terms and conditions which were at the bottom of the front page, underneath the recipient's address. However, we considered both texts were too small and not sufficiently prominent to make it obvious that the circular was a marketing communication. We also noted Hyperoptic's point that the circular had been addressed to the recipient, rather than a named individual, but we considered that that did little to make the nature of the mailing obvious to consumers.
We noted that the back of the circular contained text at the top stating a scheme reference number and membership number. It also referred to "Your BT contract" in large red print at the top and that below that the first sentence of text began with the underlined word “IMPORTANT”. We considered those factors gave the impression that the circular was commercial correspondence which related specifically to the recipient. The following text was set out to look like a contract; in particular, the parties were listed at the top ("1st Party: Service Provider and 2nd Party: The Customer") and the information underneath was set out in paragraphs which resembled clauses in a legal contract. We noted the tear design in the middle of the page, where the circular opened up, and the icon over the fake tear which stated "Break free & beat the price rise", as well as the small print at the bottom of the page which stated "Please note: this is not genuine [sic] contract, obviously". We considered that recipients who took time to engage with the back of the circular would identify its true nature, which became even clearer to those who opened it. However, we considered that it was, nevertheless, not obvious that the circular was a marketing communication and was not private commercial correspondence. Because we considered the marketing communication was not obviously identifiable as such, we concluded that the ad breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
The ad must not be used again in its current form. We told Hyperoptic Ltd to ensure their marketing communications were obviously identifiable as such in future.