We live in a highly competitive world where passengers have several options open to them when travelling. Road, rail, air, Uber – the need to advertise and stand out has never been stronger.
Despite this, one thing has not altered; the need to follow the rules when it comes to advertising. Yes, to an extent an operator can do what it wants. However, by ignoring the rules a tailwind of discomfort is sure to follow.
Consider the trouble with the Advertising Standards Authority (ASA) that National Express Group plc found itself in last March (2016).[wlm_nonmember][…]
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The company’s website, as seen on September 28, featured text that stated: “Leaving 30 October 2015 LONDON (Victoria Coach Station) to HEATHROW AIRPORT LONDON (Terminals 2, 3) … Journeys departing on Friday, 30 October 2015 …”. Below this was a coach schedule that listed two services to Heathrow airport that departed at 1730hrs and arrived at 1815hrs, with the journey time quoted as “0h 45m”. A complainant, who frequently travelled from London Victoria to Heathrow airport by coach, challenged whether the 45-minute journey time for the Friday service departing at 1730hrs was misleading and could be substantiated.
The company responded by saying that the journey time would be affected by external factors such as traffic, weather, road works and the time of day. Despite National Express providing some evidence for their claim, the ASA upheld the complaint because the company didn’t have evidence for that specific time frame.
Others in the sector, including Arriva North East (February 2013), Wilts & Dorset Bus Company Ltd (October 2016), Sheffield Bus Partnership (July 2015) and easyBus Ltd (July 2015) – and more – have fallen foul of the rules too.
The rules
Starting with the ASA, the UK’s independent regulator of advertising across all media, it applies two codes of practice – CAP and BCAP Codes – which it uses to regulate non-broadcast and broadcast advertising respectively.
However, Donald Mee, an associate at Harbottle & Lewis LLP, said that the Consumer Rights Act 2015 (CRA) is also relevant; it sets out consumers’ rights and remedies for defective services, goods, and digital content. Said Donald: “Any public statements made by a firm (including those in advertising) will be relevant in assessing whether the services and goods comply with the quality standards set out in the CRA. For services, anything that is said or written to the consumer by the provider about it or the service will be deemed to be part of the contract for the service, provided that the consumer takes it into account when deciding to enter the contract or makes any decision about the service after entering into the contract.”
Operators should also be aware of the Consumer Protection from Unfair Trading Regulations 2008 (CPR’s). The premise behind the CPR’s is simple – they prohibit any unfair, misleading and/or aggressive commercial practices. Further, as Donald noted, “they also set out 31 ‘blacklisted’ practices that are expressly banned; these include displaying a quality mark without authorisation, falsely claiming to be a signatory to a code of conduct, and falsely stating that a service or product will be available for a very limited time in order to obtain an immediate decision.”
While consumers are aware that they have rights, Donald suggested that advertisers must note that businesses have protection too in the form of the Business Protection from Misleading Marketing Regulations 2008 (BPMRs). These prohibit misleading business-to-business marketing communications. Donald added: “It’s important to note that the BPMRs also set out the conditions under which comparative marketing communications (to consumers or businesses) are permitted, these rules are incorporated into the CAP and BCAP codes which the ASA enforces.”
Responsibility for enforcement of the CRA and CPRs sits with the Competition and Markets Authority (CMA) and Trading Standards, while responsibility for enforcement of BPMRs sits with Trading Standards (though the CMA has the power to enforce the BPMRs if it wishes).
Activities allowed
The CAP and BCAP Codes cover a number of specific areas and Donald said operators would be advised to review the relevant code (they can be easily found online) when planning any advertising. “As a general rule, adverts must be identifiable as adverts, not be misleading and not likely to cause harm or serious or widespread offence.”
He explained that the two codes set out particular restrictions depending on, amongst other things, who the advert is targeting and what is being advertised. Particular rules also apply to comparative advertising.
Because the CPRs prohibit unfair, misleading and/or aggressive commercial practices, the ASA will take factors identified in CPRs into account when it considers whether a marketing message breaches the CAP or BCAP Code.
The rules make an advert misleading if it is likely to deceive consumers and likely to cause consumers to take “transactional decisions” (i.e. buy, keep, pay for something or enter into a contract) that they would not otherwise have taken. As Donald pointed out, an advert can mislead not just by including false information, “but also by omitting to include important information that allows the consumer to make an informed decision.”
While it’s less likely, there’s another element of the rules that an operator should consider – that of aggression. “Here,” said Donald, “an advert will be deemed to be aggressive if it is likely to significantly impair the average consumer’s freedom of choice through harassment, coercion or undue influence and, as a result, consumers are likely to take transactional decisions they would not otherwise have taken.” Factors here include the timing, location, nature or persistence of the advertising and whether the advertiser is aware of any specific misfortune or circumstance of the consumer and exploits that.
An advert may also be deemed to be “unfair” if it goes against the requirements of “professional diligence” – the standard of care expected towards consumers and general principle of good faith in the advertiser’s field of activity – and is likely to materially distort the buying behaviour of consumers in relation to the advertised goods or services.
Other fields
While most consider the rules apply to print, radio and TV, operators must note that the ASA rules also apply to social media. Adverts and social media posts must be clearly identifiable. So just as with traditional media, the ASA will consider complaints about adverts on social media too. The same applies to promotional activities such as competitions – CAP (Section 8) and BCAP (Section 28) contain particular rules here.
Those who use sponsorship to promote their activities need to note that this too is regulated in the same way as any other form of advert. Donald said that particular rules apply to the sponsorship of broadcasts – “these are set out in section 9 of the Ofcom code and require that: (i) sponsorship arrangements are transparent; (ii) sponsorship messages are separate from programmes and advertising is distinguished from sponsorship; and (iii) the broadcaster maintains editorial control over sponsored content and that programmes are not distorted for commercial purposes.”
What are the penalties for breaching the law?
With the principles established, the natural question is what happens if a complaint is upheld? “Quite simply,” said Donald, “if the ASA finds that an advert breaches the CAP or BCAP Code, it will ask the advertiser to withdraw or change it.”
This is what happened in the National Express case (above). Interestingly, although the ASA cannot impose fines, the ASA does have other sanctions at its disposal which include publishing its decisions and asking publishers and media owners to refuse space for an advertisement until it has been changed. It can also refer the advertiser to Trading Standards or the CMA, who can seek an injunction through the courts to prevent the same or similar claims being made in future adverts.
While some may consider the ASA toothless – it’s not – Donald doesn’t recommend engaging in a practice that is banned under CPRs or placing misleading advertising prohibited by BPMR as “these are criminal offences punishable by a fine, up to two years in prison or both. Consumers also have civil remedies against entities that breach CPRs; these include unwinding the relevant transaction or receiving a discount.” This legal remedy could prove very expensive.
The lesson is, and ought to be, play by the rules. The one-off gain from breaking the rules really isn’t worth the publicity.[/wlm_ismember]
