Background
Summary of Council decision:
Four issues were investigated, of which three were Upheld and one Not upheld.
Ad description
Seven ads for 192.com, an online directory.
Two tweets on the 192.com Twitter feed stated:
a. "We overtake Yell to become the UK's leading online directory: It's official: 192.com is now the UK's ... bit.ly/100TaY6"; and
b. "Read about us in the Times today who report on 192.com becoming the top UK online directory @thetimes #champions".
Three retweets by 192.com on their Twitter feed stated:
c. "Alexage review 192.com overtakes Yell to become the UK's leading online directory - Journalism.co ... bit.ly/VpPNLj";
d. "massive kudos to @192.com who have now taken over from @yell as the most popular online directory"; and
e. "Well done to @192.com who are now the most popular online directory - here's my interview with founder Alastair Crawford bit.ly/XyZowq".
f. A post on 192.com's Facebook page included a link to a press release within a blog entry on the 192.com website and claims stated "According to Experian Hitwise which measures the largest sample of worldwide internet users, 192.com last month had 18% more visits than Yell.com and more than six times as many visits as BT's The Phonebook”.
g. Claims on www.192.com stated "192.com lists more businesses in the UK than any other directory and gives you much more information on any business you find. You'll discover a full business profile including shop front photos, web reviews and references, property prices, maps and aerial photography, and company & director reports".
Issue
1. hibu (UK) Ltd, trading as yell.com, challenged whether the comparative claims in ads (a), (b), (c), (d), (e) and (f) were misleading because they were not on a like for like basis because yell.com was for business searches only whereas 192.com allowed for business and people searches;
They also challenged whether the following claims were misleading and could be substantiated:
2. "top UK online directory" in ad (b)
3. "UK's leading online directory" in ads (a) and (c); and
4. "192.com lists more businesses in the UK than any other directory" in ad (g).
Response
1. 192.com Ltd (192.com) said consumers could search for businesses on both their and hibu's website. They added that the majority of the searches undertaken were for businesses, and not for people as hibu had believed. They noted they were not the only directory to allow consumers to search for people; the BT Phone Book also had that search function.
192.com did not believe they should be precluded from making comparisons with yell.com because consumers could also search for people on the 192.com website. In addition, they believed that search function on their website did not change the fact that they were more popular than yell.com when measured by number of visits per month.
192.com said their press release about website visit numbers had to be taken into account when considering those comparative claims. They noted it drew specific attention to the fact that visitors to 192.com searched for people as well as businesses.
2. & 3. 192.com said the blog entry on their own website ‒ a link to which was included in ad (a) ‒ made explicitly clear that the "leading online directory" claims referred to the number of visits to the 192.com website. It was headlined "We overtake Yell to become the UK's leading online directory" and immediately followed by the text "It's official: 192.com is now the UK's most popular online directory. According to Experian Hitwise which measures the largest sample of worldwide internet users, 192.com last month had 18% more visits than Yell.com and more than six times as many visits as BT's The Phonebook". That was followed by the sentence "Hitwise monitors the use of more than a million websites by over 8 million UK internet users by ranking UK business directories by share of web visits". They believed the references to "more visits" and "share of web visits" made clear what they meant by the "leading" claim and on what basis it had been made. Because of that, they did not believe consumers would interpret those "leading" claims in any other way and therefore, they would not be misled.
192.com said Hitwise obtained monthly data from the major UK internet service providers who were able to say accurately how many visits each monitored website received. In December 2012, 192.com received the most visits of the ten websites they monitored. Although Hitwise were not accredited by the Audit Bureau of Circulations (the ABC), their methodology was audited by an independent third party.
192.com believed measuring the number of visits to a website was an appropriate and proper way to measure popularity; it could be measured accurately and used a straightforward method to do so. They understood there could be problems in accurately measuring the number of unique visitors to websites because of the increase of people owning/using more than one device to surf the internet and because they may also be in the habit of deleting cookies from their devices.
Notwithstanding 192.com's view on website visits as an appropriate measure of website popularity, they also provided evidence based on unique visitors for the yell.com and 192.com websites. They believed that data also supported their claims of being "the UK's leading online directory" and "top UK online directory".
4. 192.com said the data available to consumers when searching on their website was supplied to them by four different parties. They provided evidence which demonstrated the number of business entries each party supplied and they added that the data available on their website was the full data from each of their four suppliers; something which they believed was not true of any other UK online directory. They believed that guaranteed no other UK directory offered more unique business listings.
192.com said it was not the case that each supplier provided unique business entries. It was possible that there was some "overlap" of business entries, i.e. some of the businesses appeared on more than one data supplier's list. They believed, however, that the number of unique businesses provided by their single biggest supplier of data alone exceeded the number of businesses listed on yell.com.
192.com provided documentary evidence for nine other UK online directories which they said only offered business listings with a contact telephone number. They said 192.com were unique in that respect because they provided a much more comprehensive directory which included businesses with no contact number, holding companies, trusts, property investment vehicles, etc. Although they aimed to put consumers in touch with businesses, the website was also used for researching information about companies for which that additional data was key. They believed their evidence supported the claim and that it was not misleading.
Assessment
1. Upheld
The ASA noted that the tweets and retweets appeared on 192.com's Twitter feed between 17 and 24 January 2013. Consequently, we considered each was a marketing communication in its own right, rather than a quick succession of tweets related to one another and thereby constituting only one marketing communication.
The Code permitted comparisons when the product or service met the same needs or were intended for the same purpose. Ads (a) and (c) claimed that 192.com had overtaken yell.com as the UK's leading online directory. In addition, ad (d) claimed that 192.com had overtaken the complainant to become the most popular online directory. We considered those were claims that were likely to be seen as a direct comparison between the two websites.
We acknowledged both sites were online directories. However, yell.com provided only business listings, unlike 192.com that also offered searches for people. In that regard, we considered the two services did not meet the same need because the purpose of the two websites was not interchangeable. Consumers were likely to interpret the claims in ads (a), (c) and (d) to mean that yell.com and 192.com offered the same service which was not the case. We considered, however, that a comparison between the business listings only of 192.com and yell.com would have met the same needs test on the grounds that the two services were interchangeable. We therefore concluded the comparisons in ads (a), (c) and (d) were unfair. In addition, we considered the basis of the comparison, i.e. website popularity (discussed in points 2 and 3 below), should have been included in the ads. Because it was not, we concluded the comparison was unclear and misleading.
On that point, ads (a), (c) and (d) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. 3.34 3.34 They must compare products meeting the same need or intended for the same purpose. and 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with Identifiable Competitors).
Ads (b) and (e) claimed that 192.com was now the top UK online directory and the most popular online directory; claims we considered were likely to be seen as ones that compared 192.com to all of its competitors, not just yell.com.
The Code requires comparative claims with unidentified competitors and to ensure elements of the comparison must not be selected to give the advertiser an unfair advantage. The claims in ads (b) and (e) were based on website visits and we understood that 192.com offered a wider range of search functions than some of its competitors. We therefore considered consumers were likely to be attracted to its "one stop shop" nature and, consequently, it may attract more web traffic than other online directories that, for example, only offered business listings. That information had not been made clear in the ads and we considered that by choosing an element such as website visits was likely to give 192.com an unfair advantage. We therefore concluded the comparative claims breached the Code.
On that point, ads (b) and (e) breached CAP Code (Edition 12) rule 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other comparisons).
Although ad (f) made clear the comparison was based on visits to their website, for the reasons stated above, we considered the comparison was unfair. We therefore concluded ad (f) also breached the Code.
On that point, ad (f) breached CAP Code (Edition 12) rules 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. 3.34 3.34 They must compare products meeting the same need or intended for the same purpose. and 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with Identifiable Competitors).
2. Upheld
hibu believed the claim "top UK online directory" was likely to be seen as a "best selling" type claim, which referred to 192.com's revenue being higher than its competitors. However, in the context of an ad for an online directory, we considered consumers were likely to see it as one about the popularity of the 192.com website compared to that of its competitors.
We noted that data, collated by Experian Hitwise over a nine-month period (April 2012 to December 2012), had shown in December 2012 that 192.com received the most number of visits out of the ten online directories Hitwise had monitored.
However, to support such a claim, we considered 192.com needed to hold evidence which demonstrated both that 192.com had the highest number of unique visitors and that the data had been verified by the ABC or an independent third party. That verification would confirm the data had been compiled in accordance with current industry accepted standards as defined by the Joint Industry Committee for Web Standards (JICWEBS). We noted 192.com's argument that the leading claims in ads (a) to (e) were qualified on their blog page, a link to which was included in ad (a), and that consumers would therefore not interpret the claim in any other way other than "more visits" and would not be misled. However, we considered the information on the blog page contradicted rather than qualified the leading claim as it advised consumers that the claim was based on something which was unlikely to be their understanding of how popularity would be measured ‒ unique visitors.
In addition, we considered 192.com's claim was unlikely to be seen as one simply comparing 192.com to yell.com, as was clear from ads (a), (c) and (d) which referred explicitly to yell.com. The Hitwise data monitored ten directories which made up 96% of the market. Although 192.com had not compared all of their competitors, we were satisfied that the directories that made up the remaining 4% of the market did not have more website visitors. Notwithstanding that, we considered the evidence was still insufficient because it related to website visits instead of unique visitors and it had not been verified.
Also, for the reasons mentioned in point 1 above, we considered it was unfair to make "leading" claims based on the popularity of the websites when those websites did not meet the same need or intended purpose. We therefore concluded that the claim "top UK online directory" in ad (b) had not been substantiated and was misleading.
On this point, the claim breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), and 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other Comparisons).
3. Upheld
hibu also believed the claim "...UK's leading online directory" was likely to be seen as one about highest revenue. However, as stated above in point 2, we considered consumers were likely to see it as a comparative one about website popularity.
Ads (a) and (c) explicitly referred to 192.com overtaking yell.com to become the UK's "leading online directory." Although the claim had initially been predicated on 192.com having the highest number of website visits, we also saw evidence that they had more unique visitors than yell.com. However, because that unique visitor data had not been verified, we considered it was still insufficient to support the claim. In addition, as stated above, we considered the two services were not comparable because they did not meet the same need or intended purpose. We therefore concluded it had not been substantiated and was misleading.
On this point, the claim 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) 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. 3.34 3.34 They must compare products meeting the same need or intended for the same purpose. and 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with Identifiable Competitors).
4. Not upheld
We considered the claim "192.com lists more businesses in the UK than any other directory" was one for outright superiority and we noted 192.com had compared their business listings to those of nine other online directories. Although they had not compared all of their competitors, we understood that together with 192.com those nine directories made up 96% of the market. We considered 192.com's evidence demonstrated that they listed more business listings than their competitors. For those reasons, we concluded the claim "192.com lists more businesses in the UK than any other directory" had been substantiated and was not misleading.
On this point, we investigated the claim under 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 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other Comparisons) but did not find it in breach.
Action
Ads (a) to (f) must not appear again in their current form. We told 192.com to hold suitable evidence when making website popularity claims. We also told them to ensure their future comparisons were clear and fair.
