Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two text messages promoted a loans service:
a. The first, received on 13 May 2013, stated "Your money is waiting to be transfered [sic] you have passed the credit check just complete the form at http://urquickcash.com to get up to £1000 transfered [sic] ASAP".
b. The second, received on 8 June 2013, stated "Hi, you have been accepted for £1000 to be transferred to your account ASAP just fill out the form at http://urquickcash.com you have passed the credit check".
Issue
Two complainants, who had each received one of the text messages, challenged whether they:
1. breached the Code, because the messages were unsolicited; and
2. were misleading, because the complainants believed that the advertiser did not hold any records about them.
Response
Cryton Ltd said they were not responsible for sending the text messages. They explained that they employed a third-party company to send messages on their behalf, but that upon being informed of the complaints that company had told them they had not sent the messages in question. They said the website www.urquickcash.com had been set up by one of their developers and they had had control of it whilst he worked for them.
Assessment
1. & 2. Upheld
The ASA understood that Cryton Ltd controlled the website to which the messages directed recipients and had employed a third-party company to send marketing messages on their behalf. Although we accepted that Cryton Ltd might not have been directly responsible for the messages, we considered that, as the company receiving the benefit of having consumers directed to a website under their control, they had a duty to ensure that any party employed to promote that website did so in accordance with the CAP Code. We therefore considered that they were ultimately accountable for the content of the text messages.
We noted that no evidence had been supplied to demonstrate that appropriate consent to receive the text messages had been given by the complainants, or to support the claims "Your money is waiting to be transfered [sic] you have passed the credit check ... get up to £1000 transfered [sic] ASAP" and "... you have been accepted for £1000 to be transferred to your account ASAP ... you have passed the credit check". We therefore concluded that the ads had breached the Code.
The ads breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 10.13.3 10.13.3 sending marketing communications by electronic mail (excluding by Bluetooth technology) but marketers may send unsolicited marketing about their similar products to those whose data they have obtained during, or in negotiations for, a sale. Data marketers must, however, tell those consumers they may opt out of receiving future marketing communications both when they collect the data and at every subsequent occasion they send out marketing communications. Marketers must give consumers a simple means to do so (Database practice).
Action
The ads must not appear again in their current form. We told Cryton Ltd to ensure that appropriate consent had been given before sending, or employing others to send on their behalf, marketing communications by text message, and not to imply that they held personal information about recipients unless that was the case.
