Background
Summary of Council decision:
Three issues were investigated, all were Upheld.
Ad description
Two SMS messages (texts) from a claims management company:
a. The first text stated "We have been trying to contact you regarding your PPI Claim, we now have details of how much you are due, just reply CONFIRM and we will call you back".
b. The second text stated "Our records indicate you may be entitled to £3750 for the accident you had. To claim for free just reply CLAIM to this msg. To stop text STOP".
Issue
Three complainants, two of whom received text (a) and one who received text (b), challenged whether:
1. the texts were misleading and could be substantiated, because they had not recently had an accident or did not believe that they were eligible to reclaim PPI payments; and
2. the texts breached the Code because they were unsolicited.
3. One of the complainants also challenged whether text (a) breached the Code because it did not identify the advertiser.
Response
Data Supplier did not respond to the ASA's enquiries.
Assessment
The ASA was concerned by Data Supplier's lack of substantive response and apparent disregard for the Code, which was a breach of CAP Code rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to provide a substantive response to our enquiries and told them to do so in future.
We noted that we had not seen any evidence to show that the recipients of the texts had given their explicit consent to be included on the Data Supplier's database. We also understood that none of the recipients had recently had accidents or considered themselves to be eligible to make a PPI claim, and that the texts did not identify who the message had been sent from. For those reasons we concluded that the texts were unsolicited and misleading, and were therefore in breach of the Code.
The texts 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), 10.4 10.4 Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media. To avoid making persistent and unwanted marketing communications, marketers must do everything reasonable to ensure that: 10.4.2 10.4.2 marketing communications are not sent unsolicited to consumers if explicit consent is required (see rule 10.13) 10.6 10.6 Marketing communications sent by electronic mail (but not those sent by Bluetooth technology) must contain the marketer's full name (or, in the case of SMS messages, a recognisable abbreviation) and a valid address; for example, an e-mail address or a SMS short code to which recipients can send opt-out requests. 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 texts must not be sent again in their current form. We told Data Supplier not to send texts to consumers unless they had their explicit permission to do so. We also told them not to make claims in their advertising unless they could provide evidence to substantiate them, and to identify themselves as the advertiser in any future texts.
CAP Code (Edition 12)
1.7 10.13.3 10.4 10.4.2 10.6 3.1 3.7
