Ad description

A paid-for Google ad for New Europe Tours, a company offering guided walking tours, seen on 26 July 2017, stated “Free Walking Tours of London - Explore London with SANDEMANS … Europe’s #1 Guided Walking Tour Company, with Free-Lance Local Guides … Free Tour The original Free Walking Tour, explore with a local guide!”.


London Walks Ltd, who understood that customers who attended the advertiser’s free tour would be invited to tip guides, challenged whether the claims that the walking tour was “free” were misleading.


be Sandemans New Europe Ltd (Sandemans) said they accepted that the ad did not mention that guides would invite tips, but said that was because the character limit for Google ads was very small, which meant they were limited in terms of what information could be presented. They highlighted that CAP Code rule 3.3 stated that when a marketer was restricted by space – as was the case for a Google paid-for search ad – the question of whether any omission was likely to mislead depended on the measures the marketer took to make that information available to consumers by other means. They believed they had complied with the Code, because customers were unable to book onto a tour without first visiting a page which contained relevant information on tips.

People who clicked through from the ad were taken to the home page of the London tours section of their website, which included information about how their tour guides were remunerated with tips. Text included “We … are committed to giving a voice to some of London’s best local freelance tour guides … The independent guides who employ us to market their tours conduct the FREE Tour on a tips-only basis thereby guaranteeing that you receive a tour of the highest quality. They’ll never pressure you to tip; we believe that, if money is given, it should be voluntary and in direct proportion to the quality of the tour and the budget of the traveller”. Sandemans said that text appeared in font size that was no smaller than the rest of the text on that web page.

Notwithstanding that they believed they had not breached the Code, they suggested that they could amend the Google ad to refer to a “tips-based FREE Tour” or “gratuity-based FREE Tour”. They also suggested that they could amend some of the headline “FREE Tour” claims on the ad’s landing page of their website to refer to their “gratuity-based FREE Tour”, with an asterisk linking down to the text providing information about guides’ remuneration.

They referred to ASA guidance published in March 2017 which advised that if discretionary payments were not kept in full by guides (for example, if they were charged for marketing costs) that should be made clear to consumers, and that in such cases advertisers should avoid using the term “tip” to describe the discretionary payment because consumers were likely to expect that any discretionary payment would go directly, and in full, to the tour guide.

Sandemans said that for customers to think that guides would keep 100% of their tips they would need to have the expectation that their income was not subject to taxation and that they did not incur normal self-employment charges and costs. They explained that they worked with freelancers who employed Sandemans to market their services. Guides did keep the tips they received in full, but that did not preclude them paying Sandemans for marketing/customer acquisition services. They said that, as freelancers, the guides who conducted Sandemans’ tours necessarily had costs they incurred that were associated with their work. There was a clear distinction and separation between the revenue they took in and the costs they incurred to generate that revenue. Guides purchased advertising and marketing services from Sandemans in a completely separate transaction. Guides might use their tips to finance the marketing fee, but they may instead use commissions they earned through upselling paid tours to the Free Tour customers, or they may use other income. Guides also incurred other costs such as taxes, licenses and transportation costs.

Sandemans also believed the term “tip” would not mislead consumers about their relationship with their guides. They said that tips-based free tours were the norm and that consumers, whether they were from the UK or were tourists visiting the UK, would be familiar with the concept. They said that the dictionary definition of “tip” was “a sum of money given to someone as a reward for a service”. They felt that the term “discretionary payment” was likely to be more difficult for consumers to understand than the term “tip”, particularly those whose first language was not English, because the word “discretionary” would only be understood by people with a 'C1' level of English.



The ASA considered consumers would understand the “FREE Tour” claims in the ad to mean that they could attend the tour without making any payment. We therefore considered that some consumers would not expect that, once on the tour, they would be invited by the guide to make a discretionary payment. We considered that was material information that could affect a consumer’s decision about whether or not to find out more about the free tour by clicking through to the website.

Consumers could attend Sandemans’ free tours without making any payment, but during the tour the guide would invite tips. At the time the ad was seen by the complainant, information about Sandemans’ approach to tipping was included one click away, on the advertiser’s website. We acknowledged that Google ads were limited to a small number of characters but considered there was sufficient space in which to include a brief reference that indicated to consumers that tips would be requested. Because that was material information we considered it must be included in the Google ad in order to avoid misleading consumers.

We welcomed Sandemans’ willingness to include such an indication in their Google ad going forward and reviewed their comments as to the terminology they might use. We understood that Sandemans charged their guides a marketing fee based on a set fee for each person who turned up to each free tour the guide conducted. We acknowledged that as freelancers the guides would incur various costs associated with their business, which might include marketing costs, and that the Google ad made reference to “Free-lance Local Guides” conducting the tours. However, we also noted that the free tours were branded and marketed as Sandemans tours and consumers signed up to the tour based on that branding, rather than based on the reputation of the individual guide providing the tour. In that context we considered consumers were unlikely to expect that guides would be required to make a payment to Sandemans (for marketing or other costs), and that they would expect that guides would keep their tips in full. We therefore considered that in order to avoid misleading consumers, information about Sandemans’ relationship with their guides should be made clear as a qualification to any references to discretionary payments.

The Google ad was limited in space and we accepted that it was not possible to properly explain, in the space available, the specific relationship between Sandemans and their guides, including that they required guides to pay them for marketing costs. We therefore considered it was acceptable for that qualifying information to be provided one click away from the ad. At the time the ad was seen by the complainant, the information about guides paying marketing costs was provided one click away from the ad, on the landing page of Sandemans’ website. However, it was at the bottom of the page and website visitors must scroll past prominent links into the booking process in order to view it. We considered many visitors would enter the booking process without seeing that information and that it was therefore not sufficiently prominent. We welcomed Sandemans’ willingness to address that.

We considered that advertisers should be careful about the terminology they used to describe discretionary payments in situations where they were not retained in full by the guide, in order to avoid implying that guides did receive such payments in full. We considered the term “tip” would be understood in that way by consumers. However, given that Google ads were limited in space we considered that if qualifying information about Sandemans’ specific relationship with their guides was provided prominently one click away from the ad, that information would serve to qualify terms such as “tips-based” rather than contradicting them.

Because the ad did not indicate that “free” tour attendees would be invited to make a discretionary payment, and information making clear that Sandemans required guides to pay them for marketing costs was not presented to consumers sufficiently prominently, we concluded the ad breached the Code.

The ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 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),  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) and  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).


The ad must not appear again in the form complained of. We told SANDEMANS NEW Europe GmbH to ensure their ads made clear that “free” tour attendees would be invited to make a discretionary payment, and that information making clear that Sandemans required guides to pay them for marketing costs was presented prominently to consumers.

CAP Code (Edition 12)

3.1     3.23     3.3     3.9    

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