Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Five direct mailings, for an estate agent, each comprising an envelope with a compliment slip inside:
a. The envelope of the first ad displayed the "haart" logo in the bottom right-hand corner. Text above the address in the address window stated "IMPORTANT CONTACT INFORMATION FOR THE HOME SELLER OF: [address]". Inside, the compliment slip stated "haart Camberwell Green" in the top left-hand corner and details of the Camberwell Green branch in the top right-hand corner, including a haart e-mail address for "Lesley Miller". Text, in a handwritten-style font, stated "Call me ASAP about the sale of your home? Many thanks Lesley Miller". Smaller text in the bottom right-hand corner, also in a handwritten-style font, stated a reference number.
b. The envelope of the second ad displayed the "Darlows" logo in the bottom right-hand corner. Inside, the compliment slip stated "Darlows Llanishen" in the top left-hand corner and details of the Llanishen branch in the top right-hand corner, including a Darlows e-mail address for "Lesley Miller". Text, in a handwritten-style font, stated "Please call me as a matter of urgency about the sale of your home. Many thanks Lesley Miller". Smaller text in the bottom right-hand corner, also in a handwritten-style font, stated a reference number.
c. The third ad was the same as ad (b), except that it referred to the haart Leagrave branch and the e-mail address for "Lesley Miller" was the same haart e-mail address as in ad (a).
d. The fourth ad was the same as ad (c), except that it referred to the haart Swindon branch.
e. The fifth ad was the same as ad (c), except that it referred to the haart Plymouth branch.
The ASA received five complaints, including one from Matthews Estate Agents.
1. All five complainants challenged whether the ads were obviously identifiable as marketing communications.
2. Matthews Estate Agents and three members of the public challenged whether ads (a), (b), (d) and (e) were likely to cause undue distress, particularly to the vulnerable and the elderly, because they implied the properties to which they were sent were for sale or that problems had arisen with ongoing sales.
3. Matthews Estate Agents and two members of the public challenged whether ads (a), (b) and (e) misleadingly implied that "Lesley Miller" was based at the branches referenced in the ads.
1. Spicerhaart Estate Agents, t/a haart Estate Agents and Darlows Estate Agents (haart) considered that, notwithstanding the use of the handwritten font on the compliment slip, it would have been clear to recipients that the ads were marketing communications. They said they had made amendments to their ads following previous ASA adjudications on similar mailings, and had put procedures in place to ensure that advice was sought from CAP’s Copy Advice team before ads were published. They highlighted that the ads were sent in branded envelopes and stated a business return address on the back, and said the Copy Advice team had previously approved envelopes of that type. They said each envelope would also have had business mail franking as opposed to being stamped. They said the reverse of the compliment slips featured the address of the property in a coloured typed font, and were boldly and brightly coloured. The front of the compliment slips were heavily branded, with the relevant business logo clearly and prominently displayed at the top-left with the business name, address of the local branch and website clearly and prominently displayed at the top right.
haart also considered that the ads could not be mistaken for routine correspondence between an estate agent and vendor who was already signed up as a client. They said that in the highly unlikely event that the ads were sent to current haart clients, their nature and format were such that they would be identifiable as marketing communications. They added that the vast majority of contact with clients was on a day-to-day basis via telephone or e-mail.
2. haart said the ads were designed for, and intended to be sent to, recipients whose properties were currently being marketed for sale by other agents. Such properties were usually identified by the presence of a ‘For Sale’ board, and addresses for those properties were added to a list operated by the local branch. A central department then used those lists to send marketing communications to listed properties. haart said responsibility for ensuring the lists were kept accurate and up-to-date lay with branches and they were regularly reminded of the importance of keeping the lists accurate.
haart had identified four of the properties to which the ads had been sent. They understood that three of those properties were not in fact being marketed for sale. They apologised and said the addresses had been removed from their marketing lists, and steps had been taken to reiterate to branches the importance of ensuring the lists were up-to-date. In relation to the property which was being marketed for sale (by another agent), they said if a vendor had instructed agents to sell their property, they would know the identity of the agents instructed. They believed it was highly unlikely that a vendor would mistake material from a different agent to be correspondence from the instructed agent. They said in the unlikely event that haart did need to contact a vendor of a property they were not marketing, in relation to a potential issue with the sale of that property, any correspondence would, in the first instance, be with the instructed agents and for them to relay the information to the vendor.
3. haart confirmed that Lesley Miller was not physically based at the branches referred to in the ads. Ms Miller was their New Business Manager and was based at their head office in Colchester. They said they did not agree that the reference to Ms Miller in the ads implied that she was based at all the relevant branches. They acknowledged that the ads listed the addresses of local branches, but said they made no express reference to Ms Miller being based at the branches, nor did they assert that she held any particular role at the branches. They said that calls to the phone numbers on the ads went through to Ms Miller and her team, who were in a position to act as the first contact for queries arising from the ads and were able to either directly deal with queries or identify the appropriate person to deal with them. They said Ms Miller’s team had a high level of contact and interaction with branches and had access to branch property databases and files, which meant they had virtually the same level of information regarding transactions and prospective purchasers. haart considered it was therefore appropriate to associate Ms Miller with their branch network in their advertising.
The ASA noted the mailings were intended to be targeted to properties which were being marketed for sale with other estate agents and we therefore understood the mailings were designed to encourage recipients to contact haart so they could be encouraged to market their property through haart instead. We noted that in 2009 and 2.1 2.1 Marketing communications must be obviously identifiable as such. , the ASA had ruled that similar mailings by haart were not obviously identifiable as marketing communications because they did not make clear their commercial interest in the recipients’ property. In 2.1 2.1 Marketing communications must be obviously identifiable as such. , however, we considered that a haart mailing was obviously identifiable as a marketing communication because handwritten text on the compliment slip stated “We would love to help you sell your home” and therefore their commercial interest in the recipients’ property was made clear.
We acknowledged the envelopes and compliment slips all featured haart or Darlows branding and we considered it was clear the mailings were from haart. However, we considered the inclusion of branding alone was not sufficient to make clear haart’s commercial interest. Furthermore, we considered that the text “IMPORTANT CONTACT INFORMATION FOR THE HOME SELLER OF: [address]” on the envelope, and the claims “Please call me as a matter of urgency about the sale of your home” or “Call me ASAP about the sale of your home?” on the enclosed compliment slips did not make clear haart’s commercial interest in the recipients’ property. We noted that following previous ASA adjudications on their similar mailings, haart had made some amendments to their ads and to their copy approval processes. Nonetheless, we were concerned that they did not appear to have taken into account all the relevant guidance provided by the previous adjudications. We concluded the mailings were not obviously identifiable as marketing communications and therefore breached the Code.
On this point, the ads breached CAP Code (Edition 12) rule 2.1 2.1 Marketing communications must be obviously identifiable as such. (Recognition of marketing communications).
We noted the mailings were intended to be targeted to properties which were being marketed for sale by other estate agents, but considered that because the commercial intent behind the mailings was not clear, recipients who were in the process of selling their property through other agents might infer that something had gone wrong with the marketing or sale of their property and haart was contacting them in that regard. We considered that was particularly the case because the mailings imparted a sense of importance through the text “IMPORTANT CONTACT INFORMATION FOR THE HOME SELLER” and a sense of urgency through their requests that recipients contact Lesley Miller “ASAP” or “as a matter of urgency” about the sale of their home. We concluded the mailings were likely to cause distress without justifiable reason to recipients who were in the process of selling their property with other estate agents. Notwithstanding that, we also concluded the mailings were likely to cause distress without justifiable reason to recipients who were not in the process of selling their home. We considered that recipients who were renting the property might infer that the owner of the property had put it on the market without informing them, and that recipients who did own the property might be concerned, particularly if they were vulnerable or elderly, that someone had attempted to market their property for sale without their knowledge. We concluded the ads breached the Code in that regard.
On this point, the ads breached CAP Code (Edition 12) rule 4.2 4.2 Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention. (Harm and offence).
We noted that each compliment slip listed the name and address of the haart or Darlows branch local to the property to which it had been sent, immediately followed by a landline and mobile phone number and an e-mail address. We noted that all the landline phone numbers had local area codes which corresponded with the location of the branch referenced. We considered that, because the e-mail address listed directly underneath the phone numbers was for Lesley Miller, and the compliment slip was signed by her, recipients would understand not only that Ms Miller could be contacted via the phone numbers and e-mail address, but that she was based at the referenced branch. Furthermore, we considered that the text “Please call me as a matter of urgency about the sale of your home” and “Call me ASAP about the sale of your home” implied that Ms Miller had important and specific information to pass on about the sale of the recipient’s property. Because Ms Miller was not based at the local branches and did not have specific and important information about the properties of recipients, we concluded the ads were misleading.
On this point, the ads breached CAP Code (Edition 12) rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
The ads must not appear again in their current form. We told haart to ensure their future ads were obviously identifiable as marketing communications, did not cause distress without justifiable reason and were not misleading to consumers.