The StubHub website www.stubhub.co.uk, seen 14 June 2018, included at the bottom left-hand corner of the majority of its pages a small icon in the shape of a shield with a tick inside it next to the text “FanProtect”. Text underneath stated “Buy and sell with confidence Customer service all the way to your seat Every order is 100% guaranteed”.
The complainant, who understood that tickets were refunded if an event was cancelled but not if it was rescheduled, challenged whether the claim “Every order is 100% guaranteed” was misleading.
StubHub (UK) Ltd believed consumers would understand from the claim that buyers were guaranteed to receive the tickets they purchased in time for the event. Additionally, they considered it was clear from their website that StubHub was not the ticket seller, nor the promoter or event organiser who they considered would be responsible for awarding refunds, if any, in circumstances where an event was rescheduled. They considered consumers therefore would not infer from the claim that they were entitled to a refund in such circumstances.
StubHub highlighted that the claim was ordinarily displayed in the footer of their website, which they said was limited in terms of space. They said that where they did not have those space constraints, they outlined the terms of the guarantee more fully, as well as the FanProtect policy itself.
They said the claim did not appear anywhere in the buying journey and it therefore could not be said to materially influence a buyer’s decision as to whether or not to proceed with a ticket purchase, or on what terms to buy tickets. They also said their buyers had the ability to recover their costs by re-selling their ticket if they could not attend a rescheduled event.
They said they would add a hyperlink to the claim so that website users could navigate from it to the page on their website which gave the details of the FanProtect policy.
The ASA considered that consumers would interpret the claim “Every order is 100% guaranteed” in the context of the accompanying claims “FanProtect”, “Buy … with confidence” and “Customer service all the way to your seat”, and the shield/tick icon. In the absence of additional accompanying information regarding the nature of the guarantee we considered the claim would be understood by consumers to mean that they would be able to obtain a refund through StubHub if their tickets did not arrive on time or gain them entry into the venue, or if the event did not go ahead at the scheduled date and time (whether it was cancelled or rescheduled).
The claim appeared in the footer of StubHub’s website, which was not limited by space; StubHub could include as much information in the footer as they chose. The claim appeared in the footer on a range of pages, including the home page and additional pages where website visitors could browse events by type (sports, concerts, theatre and comedy), and when they clicked through to an event page to see which dates, locations and prices were available. We acknowledged that the claim did not appear on the following pages in the buying journey where visitors selected specific seats, but we considered that the pages earlier in the process (on which the “100% guaranteed” claim appeared) were part of the buying journey. We considered that consumers who were concerned about whether they could get a refund if something went wrong with their purchase would already have seen the claim and made a decision to purchase tickets based on that claim.
We welcomed StubHub’s action to add a link to the claim so that website visitors could easily navigate to the terms and conditions of the FanProtect policy, which did make clear that refunds did not apply to rescheduled events. However, we considered that adding a link to the policy was not sufficient to prevent consumers from being misled by the claim as it appeared in the website footer, because we considered that consumers would understand the claim in that context to mean that they would be able to get a refund if the event was rescheduled.
Because the claim “Every order is 100% guaranteed” implied that consumers who purchased tickets through StubHub could claim a refund if the event was rescheduled when that was not the case, we concluded the ad was misleading.
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), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. and 3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualifications) and 3.53 3.53 Marketing communications must not use the word "guarantee" in a way that could cause confusion about a consumer's rights. (Guarantees and After-sales Service).
The ad must not appear again in the form complained of. We told StubHub (UK) Ltd not to use the claim “Every order is 100% guaranteed” unless the claim was prominently qualified to make clear that rescheduled events were not included in the guarantee.