Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
An online ad and a national press ad, for the University of Law Ltd:
a. An ad on the website Educompare.com, at http://news.educompare.com, seen on 11 July 2016, which had the appearance of a news article, was titled “Law Diplomas Securing Graduates £54,000 Salaries How huge earning potential means law conversions are rocketing in popularity in the UK”. A headshot next to the title was labelled “By [NAME] Educompare”. The ad provided information about Graduate Diplomas in Law (GDLs) and included the claims “…in the first 5 years of work a lawyer can expect to earn an average of £54,000 a year” and “the starting salary as a lawyer is over double the national average of £26,000”. Further text stated “How do I apply for a GDL? 1. Select where you would like to study on the map below. 2. Check your eligibility with a few simple questions and get matched with top institutions across the UK! … Educompare have matched 1000s of graduates to the right GDL with our quick and easy online tool. Click Here To Get Started”.
b. The national press ad, which appeared in a section titled ‘Your Guide to Clearing’, published on 13 August 2016, included the claim “Secure your place at the UK’s leading law school”.
Issue
The ASA received two complaints.
1. A university law lecturer challenged whether the claims in ad (a) about the potential earnings for lawyers at the start of their career were misleading and could be substantiated.
2. The ASA challenged whether ad (a) was obviously identifiable as a marketing communication.
3. A retired university law professor challenged whether the claim in ad (b) that the University of Law was “the UK’s leading law school” was misleading and could be substantiated.
Response
Marketing VF Ltd said that they wrote and controlled ad (a) and paid for it to be distributed and shown. They said that the ad was written generically so that it could also be used to advertise other providers of the Graduate Law Diploma (GDL), although on the day the complainant saw it the hyperlinks in the ad all linked to the page on their Educompare.com website which was about the University of Law. They considered that they were solely responsible for ad (a) and that the University of Law therefore did not hold any responsibility for its contents.
Both Marketing VF and the University of Law confirmed that Marketing VF did not have any involvement with ad (b).
1. Marketing VF said that small print at the bottom of ad (a) stated “*Average earnings in legal profession according to the Telegraph. Average UK earning £499 per week or £25948 per year according to Office for National Statistics”. It included hyperlinks to an article on the Telegraph’s website which described the findings of research conducted by a salary benchmarking website, and to a page on the Office for National Statistics website relating to average weekly earnings. Marketing VF said they accepted they could have referred to and held the underlying research report described by the article in the Telegraph.
The University of Law endorsed Marketing VF’s comments.
2. Marketing VF highlighted that text at the top of ad (a) stated “ADVERTORIAL”, that Educompare.com branding was also featured at the top of the web page, and that the hyperlinks in the ad linked to the Educompare.com website which displayed their company name and details. They considered it was therefore clear that the web page was an ad.
The University of Law endorsed Marketing VF’s comments.
3. In support of the claim, the University of Law referred to documentation produced by a range of external bodies.
They said that documentation produced by the Solicitors Regulation Authority, Central Applications Board and Bar Standards Board demonstrated that they had 9,486 validated places for post-graduate students in 2016 (covering the Legal Practice Course (LPC), Graduate Diploma in Law (GDL) and Bar Professional Training Course (BPTC)), compared to the next largest provider which had 5,143 places. They explained that only postgraduate validated places were provided or held by those three professional bodies and therefore they were not able to make a similar comparison about undergraduate student places. The University of Law added that figures from the Central Applications Board and Bar Standards Board also showed that they had enrolled more students on full-time postgraduate courses in the four years up to 2016 than their nearest competitor.
Relying on figures from the Solicitors Regulation Authority, they said that in the four years up to 2016, they had had more trainees commencing an LPC training contract in each year than any other provider. They also provided data relating to graduates from all UK LPC providers who had secured training contracts between 2012 and 2015. They also stated that according to the Bar Standard Board’s most recent published figures for BPTC candidates, who enrolled in 2014 and graduated in 2015, 9% of all candidates achieved the top ‘Outstanding’ score in the Bar exams, with 35% of all graduates securing pupillage. In comparison, for those BPTC candidates graduating from the University of Law in 2016, 22% achieved ‘Outstanding’ scores in the Bar exams, and 57% of their graduates had secured pupillage.
Additionally, the University of Law said that in a 2016 survey of students at universities and higher education providers, commissioned by the Higher Education Funding Council for England, they were ranked joint first in the results for a question about overall student satisfaction, and second when aggregating the results of four questions about teaching quality. They provided a spreadsheet in which they had calculated those results from data published by the Higher Education Funding Council for England.
Assessment
The ASA noted Marketing VF’s view that they were solely responsible for ad (a). However, we noted that when the complainant saw the ad, it linked through to a web page on Educompare.com which specifically advertised the University of Law and provided website visitors the opportunity to request course and prospectus information. We understood that the University of Law paid Marketing VF for such ‘leads’ generated through ad (a). We considered that because the ad was designed to generate ‘leads’ (i.e. prospective students) for the University of Law, for which they paid Marketing VF, the University of Law was the marketer for the purposes of the CAP Code.
CAP Code rule 1.8 stated that primary responsibility for observing the Code fell on marketers, and that others involved in preparing or publishing marketing communications, such as agencies, publishers and other service suppliers, also accepted an obligation to abide by the Code. As the marketer we considered that the University of Law had primary responsibility for the ad, but that Marketing VF, as an affiliate marketer, was also obliged to abide by the Code and thus held joint responsibility for ad (a).
Marketing VF did not have any involvement in the creation or publication of ad (b) and therefore did not hold any responsibility for its claims. The University of Law was solely responsible for the claims in ad (b) and therefore was solely responsible for responding to Point 3 of the complaint.
1. Upheld
Ad (a) included the claims “… in the first 5 years of work a lawyer can expect to earn an average of £54,000 a year” and “the starting salary as a lawyer is over double the national average of £26,000”. We considered consumers would understand from those claims that most lawyers would earn around £54,000 per annum in their first five years after qualifying.
We considered that a press article describing research findings was not in itself adequate substantiation to support advertising claims. We considered that we would need to see the research in order to assess whether its findings and methodology were sufficiently robust evidence for the advertising claims. Because we had not seen adequate evidence to support the claims about the potential earnings for lawyers at the start of their career, we concluded ad (a) was misleading.
On this point, ad (a) breached CAP Code (Edition12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
2. Upheld
The overall presentation of the ad was similar to that of an online press article. It featured a prominent title and subtitle followed by an image and body text, and, next to the title, a headshot with the text “By [name], Educompare”, and links which allowed website visitors to share the article through social media or email. We acknowledged that the word “ADVERTORIAL” was stated at the top of the web page. However, it appeared in small font and we considered it was likely to be overlooked by visitors to the web page, whereas the Educompare.com branding was in bolder, larger font and was therefore more prominent. The web page did not include anything which identified Marketing VF or the University of Law as the advertiser.
In addition to the claims about lawyers’ potential earnings, the body text provided general information about the GDL and how prospective students could fund its costs. A final section headed “How do I apply for a GDL?” featured a map of the UK divided into broad geographical areas and invited website users to “Select where you would like to study” and “Check your eligibility with a few simple questions and get matched with top institutions across the UK! … Educompare have matched 1000s of graduates to the right GDL with our quick and easy online tool”.
We considered that website visitors were likely to understand from the presentation and the content of the ad that Educompare.com was an independent website that provided independent advice about, and comparisons between, different educational providers to prospective students, and that the ad was an independent journalistic article written by the person named and featured in the headshot. We therefore concluded the ad was not obviously identifiable as a marketing communication and consequently breached the Code. We further considered that because the ad gave the impression that it was an independent article providing information about the GDL when it was in fact an ad for a specific GDL provider, the identity of the marketer was material information which should have been included in the ad. Because that material information was omitted, we concluded the ad also breached the Code in that regard.
On this point, ad (a) breached CAP Code (Edition 12) rules
2.1
2.1
Marketing communications must be obviously identifiable as such.
and
2.3
2.3
Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context.
(Recognition of marketing communications) and
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising).
3. Upheld
We considered consumers would interpret the claim “the UK’s leading law school” to be a comparison with the law schools/faculties of all UK universities and higher education providers in both the public and private sectors which provided undergraduate and postgraduate law qualifications. In the absence of information in the ads to explain the basis of the claim, we considered consumers were likely to understand it to mean that the University of Law was ranked as the top law school in relation to factors such as the percentage of their enrolled students who graduated, the percentage who graduated with the highest grades, and the percentage of their students who went on to secure further relevant professional training (such as training contracts for LPC graduates or pupillage for BPTC graduates).
We noted the information provided by the advertiser in relation to the total number of places available, and the number of enrolled students, on their full-time postgraduate courses compared to their competitors. However, in the absence of a clear qualification in the ad explaining that the claim was based on the number of full-time postgraduate course places available and/or the number of students enrolled on those courses, we considered it was not relevant to the likely consumer interpretation of the advertising claim.
The University of Law had provided statistics from the Solicitors Regulation Authority which showed the number of LPC graduates commencing a training contract each year from 2.1 2.1 Marketing communications must be obviously identifiable as such. to 2.1 2.1 Marketing communications must be obviously identifiable as such. , for the University of Law and their competitor BPP, who they said was the next largest provider. The figures showed that, annually, the total number of University of Law graduates who commenced training contracts was higher than BPP graduates. The data for all LPC providers showed that each year between 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.1 2.1 Marketing communications must be obviously identifiable as such. , University of Law LPC graduates comprised the largest proportion of graduates commencing training contracts across the sector, and that BPP graduates comprised the second largest proportion. Given that those two providers had the largest numbers of LPC students that was broadly to be expected. Instead, to support a “leading” claim based solely, or in part, on the numbers of LPC graduates securing training contracts, we expected to see data demonstrating that a higher percentage of students graduating from the University of Law had secured a training contract compared to the percentage of students graduating from all other LPC providers who had secured a training contract. We noted we had not seen such data.
With regard to the statistics relating to University of Law graduates who attained ‘Outstanding’ scores in the BPTC, and those who secured pupillage, we expected to see independently verified data which showed that a higher proportion of University of Law BPTC graduates achieved ‘Outstanding’ scores in the Bar exams, and secured pupillage, than any other BPTC provider in the UK. The University of Law had provided data relating to their own 2.1 2.1 Marketing communications must be obviously identifiable as such. graduates but not for 2.1 2.1 Marketing communications must be obviously identifiable as such. graduates of any other BPTC provider. We therefore considered the 2.1 2.1 Marketing communications must be obviously identifiable as such. figures from the Bar Standards Board provided the most up-to-date comparison. We noted that data showed that the University of Law did not have the highest percentage of BPTC candidates achieving ‘Outstanding’ scores, nor did they have the highest percentage of BPTC graduates securing pupillage.
With regard to student satisfaction, as referenced above we considered the relevant comparison was with the law schools/faculties of all universities and higher education providers, whereas the figures highlighted by the University of Law related to its ranking when comparing the results for all subjects offered by universities in the UK. We noted the spreadsheet they provided showed that when limiting the comparison by subject to law, the University of Law was ranked sixth in the sector for overall satisfaction and third for the aggregated score of four questions relating to teaching quality. We considered, however, that consumers would interpret a “leading claim” based all, or in part, on student satisfaction scores to mean that the University of Law was ranked highest.
Because we had not seen evidence which supported the likely consumer interpretation of the claim “the UK’s leading law school”, we concluded the claim was misleading.
On this 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),
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
3.33
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.
(Comparisons with identifiable competitors).
Action
The ads must not appear again in their current form.
We told the University of Law Ltd and Marketing VF Ltd not to make claims about the potential earnings of lawyers unless they held adequate evidence to substantiate the claims, and to ensure that their marketing communications were obviously identifiable as such.
We also told the University of Law Ltd not to make claims that they were the “leading” law school in the UK unless they held adequate substantiation, and, if such claims were based on the number of places or students enrolled, that the claim was clearly qualified to that effect.
