Background
Summary of Council decision.
Three issues were investigated, all of which were ‘Upheld’.
Ad description
Three text messages promoted the website www.firstpaydayloanuk.co.uk:
a. The first text message stated "Hi Mate I'm still out in town, just got £1000 in my account from these guys www.firstpaydayloanuk.co.uk".
b. The second text message stated "Hi Mate hows u? I'm still out in town, just got £850 in my account from these guys www.firstpaydayloanuk.co.uk".
c. The third text message stated "You have been pre-approved for up to £1000 cash today. Apply now at www.firstpadayloanuk.com and receive your cash within 15 minutes, to opt-out reply STOP".
Issue
The ASA received 13 complaints:
1. five of the complainants challenged whether text messages (a), (b) and (c) were unsolicited;
2. five of the complainants objected that ads (a) and (b) were irresponsible because they suggested a loan should be used to fund a social life; and
3. ten of the complainants objected that the familiar style of address in ads (a) and (b) did not make clear that the text messages were a marketing communication.
Response
1. First Financial Ltd t/a FirstPayDayLoanUK (First Financial) said they were merely responsible for setting up pay-day loan websites which were then passed on to advertisers. They said that on receipt of this complaint they had been assured that all data was 'opted in' and stated that a means of opting out was provided. They said they had asked the marketing company Akklaim Telecoms, to provide details of the opted in data but stated it had not been provided. They did not provide any further evidence to demonstrate that the recipients had given their explicit consent to receive the marketing message.
2. & 3. They said they had no control over the marketing.
Akklaim Telecoms said they had been diverting traffic to the website between February and March 2013 and that they had used different means of advertising, including text message. They did not respond to the specific complaints or provide evidence that recipients had given their explicit consent to receive the messages.
Assessment
We considered that although Akklaim Telecoms accepted responsibility for sending the text message ads, because the messages directly marketed the website operated by First Financial, First Financial should be considered to be the advertiser in association with Akklaim Telecoms.
1. Upheld
Although we noted ad (c) provided recipients with details of how to ‘opt-out’, in the absence of evidence to demonstrate that the five complainants had given their explicit consent to receive the marketing messages, we concluded that ads (a), (b) and (c) were unsolicited. Furthermore, one of the complainants had received the message despite registering their details with the Telephone Preference Service in order to prevent the receipt of telephone and text marketing.
On this point ads (a), (b) and (c) breached CAP Code (Edition 12) rules 10.1.1, 10.4.4 10.4.4 marketing communications are not sent to consumers who have asked not to receive them (see rule 10.5 10.5 Consumers are entitled to have their personal information suppressed. Marketers must ensure that, before use, databases have been run against relevant suppression files within a suitable period. Marketers must hold limited information, for suppression purposes only, to ensure that no other marketing communications are sent as a result of information about those consumers being re-obtained through a third party. or, if relevant, who have not had the opportunity to object to receiving them (see rule 10.9.3). Those consumers should be identifiable 10.5 10.5 Consumers are entitled to have their personal information suppressed. Marketers must ensure that, before use, databases have been run against relevant suppression files within a suitable period. Marketers must hold limited information, for suppression purposes only, to ensure that no other marketing communications are sent as a result of information about those consumers being re-obtained through a third party. 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).
2. Upheld
We considered that, within the context of the message as a whole, recipients of ads (a) and (b) would understand from the statement "I'm still out in town" that the sender had used the money from the payday loan to fund their day out and that this was therefore an acceptable way in which to spend the money. Because the text messages implied that it was suitable to use a payday loan for the purpose of 'socialising', we concluded that ads (a) and (b) were irresponsible.
On this point ads (a) and (b) breached CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Social responsibility).
3. Upheld
Ads (a) and (b) opened with the welcome "Hi mate" and ad (b) also stated "Hows u?", which suggested that the recipient of the message was personally known to the sender. We therefore considered that, despite the reference to the payday loans company website at the end of the ads, the messages would be likely to be understood by recipients as personal messages. This impression was further created because the senders' numbers were standard UK mobile numbers. Although those numbers would not have matched a name in the contact list on the recipients' mobile phones, this was unlikely to have prevented the suggestion that the message had been sent by someone known to the recipients. Because the messages did not clearly identify themselves as marketing communications, we concluded that they were misleading.
On this point ads (a) and (b) breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. (Recognition of marketing communications) and 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
Action
The ads should not appear again in their current form. We told First Financial and Akklaim Telecoms to ensure text message ads were clearly identifiable as marketing communications and were only sent to those who had given explicit consent to receive them. We also told them to ensure ads did not imply that payday loans were suitable for spending on a social life.
CAP Code (Edition 12)
1.3 10.13.3 10.4.4 10.5 2.1 3.1
