Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A sponsored search ad on Google and claims on the website paylondoncongestion.co.uk:
a. The sponsored search ad was displayed as a search result for the text "congestion charge". Text formatted as a hyperlink stated "Pay Congestion Charge - PayLondonCongestion.co.uk". Smaller text beneath stated "www.paylondoncongestion.co.uk - Pay London Congestion Charge. Avoid Late Payments, Pay Now!".
b. Clicking on the sponsored search ad took users to the "Pay Online" page of the website, the colour scheme for which was predominantly navy blue, white and off-white. Text in large print across the top of the page stated "Pay London Congestion Charge Online". Tabs beneath directed users to other parts of the website, including the home page and the terms and conditions. One tab, labelled "VISIT TRANSPORT FOR LONDON", linked to the "Oyster card" section of the website www.tfl.gov.uk.
Under the smaller heading "Pay your congestion charge" was an online form through which users could enter their details and subsequently make a payment. Small print underneath the form stated "For the avoidance of doubt, please note that this website is neither owned by nor affiliated with Transport For London (TFL), and you may also make your congestion charge payment direct on their website, online, by sms, or at other nominated high street shops and garages. Paylondoncongestion.co.uk levies a service fee for checking and processing your application via this website. This fee also provides you with the services and guarantees as described above. If you do not wish to pay for a processing service fee, please use one of the suggested alternative means of submitting your congestion charge payment".
Issue
The ASA received three complaints.
1. One complainant, who had understood that the advertised service was the official method of payment for the London congestion charge, challenged whether ad (a) misleadingly implied an affiliation with Transport for London (TfL).
2. Another complainant challenged whether ad (b) misleadingly implied an affiliation with, or endorsement from, TfL.
3. The third complainant challenged whether ad (b) was misleading because it failed to state the amount of the fee levied by TAD Services.
Response
1. TAD Services, t/a paylondoncongestion.co.uk, did not respond in relation to this point.
2. & 3. Paylondoncongestion.co.uk said their fees were clearly listed on the next page of the website at the point that consumers made their selection of which days they wished to pay for. They also said they would make the text referring to their lack of affiliation with TfL larger, and would amend the link labelled "VISIT TRANSPORT FOR LONDON" to ensure it directed users to the correct part of the TfL website.
Assessment
1. Upheld
We considered that understanding that the marketer was a third party, independent from TfL, was likely to influence a consumer's decision as to how to respond to the ad, and particularly because paying the congestion charge through the website www.paylondoncongestion.co.uk would incur fees beyond those payable when submitting a payment directly through TfL.
We noted that the ad did not include any claims that the site www.paylondoncongestion.co.uk was affiliated with TfL or that it was an "official" site for payment of the congestion charge. However, we considered that many consumers presented with the ad as a search result for the search "congestion charge" would expect it to relate to the official method of payment for the London congestion charge, and particularly in view of the listed URL. We considered that it was not clear from the ad that the link led to a website unaffiliated with the official congestion charge payment website run by TfL and that for that reason the ad was misleading.
On that point, ad (a) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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).
2. Upheld
The "Pay Online" page of the website, to which ad (a) directed users, was presented in a similar style to that of the TfL website in terms of both the typeface and the colour scheme. It also contained a tab towards the top of the page labelled "VISIT TRANSPORT FOR LONDON". We considered that both of those elements implied an association with TfL and, in combination with the heading "Pay London Congestion Charge Online" and the online form, which did not itself contain any explanation of the service on offer, were likely to lead consumers to believe that the web page was an official method of paying the London congestion charge and was affiliated with TfL.
We acknowledged that small print at the bottom of the page stated that the website was neither owned by, nor affiliated with, TfL. We were concerned by the small size of that text and its placement beneath the booking form, which in our view rendered the information insufficiently prominent on the page. However, we were also concerned that the information in the small print contradicted the overall impression created by the design of the web page, the direct link to the TfL website and the headline claim "Pay London Congestion Charge Online". We considered that changes to the layout of the web page, including, but not limited to, the prominence of the information that paylondoncongestion.co.uk was not owned by or affiliated with TfL, needed to be made in order to ensure that the nature of the service offered was clearly communicated to consumers. Whilst we welcomed paylondoncongestion.co.uk's willingness to amend their advertising, we considered that their suggested changes would not go far enough to resolve the issue.
Because the overall impression of the web page implied a connection to TfL which did not exist, and because we considered that small print alone was not sufficient to explain paylondoncongestion.co.uk's independence from TfL, we concluded that the ad was misleading.
On that point, ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
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.
(Qualification).
3. Upheld
We acknowledged that the small print at the bottom of the page stated "Paylondoncongestion.co.uk levies a service fee for checking and processing your application via this website" and explained that there were alternative means of submitting a congestion charge payment which did not incur such a fee. Notwithstanding our view that that text was insufficient, in view of the presentation of the web page as a whole, to clarify the nature of the service offered, we were concerned that the amount of the fee levied by paylondoncongestion.co.uk was not stated anywhere on the page. We noted that text on the home page did explain the amount of the fee. However, we understood that many consumers, including the complainant, would have arrived at the website through the sponsored search ad (ad (a)), and would therefore have bypassed that information. We noted paylondoncongestion.co.uk's comment that the fee information was given at a later point in the payment form, but considered that the amount of the fee they levied was material information which should have been clearly stated in the ad at or before the point at which users were invited to enter their personal details as part of an online payment form. Because it was not, we concluded that the ad was misleading.
On that point, ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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).
Action
The ads must not appear again in their current form. We told paylondoncongestion.co.uk to ensure that their ads made clear that they were not affiliated with TfL, and to specify the amount of their fees at or before the point at which consumers were invited to enter their personal details.
