Complaint: 05/319

Vodafone Website and Text Message Advertisement

Details

Complainants
T. Payne
advertisers
Vodafone
Year
2005
Media
Product
[None]
Clauses
Decision
Not Upheld
ASA Links
Website Listing
Decision Document

Document

DECISION


Chairman's Ruling

20 September 2005

Complaint 05/319

Complainant: T. Payne

Advertisement: Vodafone New Zealand Limited



Complaint: The website and text message advertisement offered a special rate, saying: "Mon - Fri 7pm - 7am.C Vodafone.co.nz 4 terms or call 236".



Complainant, T. Payne, said the conditions were not clear and the advertisement was misleading.



The relevant provision was the Code of Ethics, Rule 2.



The Chairman said the conditions were clearly specified in the advertisements and accordingly, there was no apparent breach of the Code.




Chairman's Ruling: Complaint No Grounds to Proceed








Complaint said:

"As i am currently on a flat rate (i.e., whenever i call any of the numbers listed above i pay 50c per minute) i assumed that this meant that the rate above would apply whenever i called. Certainly there was nothing in the message, nor on their home page, to suggest otherwise.

It was only after hearing from a friend who's credit expired and then going on to their website to research the details that i found out that it only applies on weeknights from 1900. This isn't even their normal off peak hours (which would include the weekend)!

I believe the text sent out as an SMS and on their home page is intentionally misleading. I believe Vodafone filly expect people to make calls outside the period when the deal is actually on by mistake."

Second email:

"I refer to your letter regarding my complaint 05/319: Vodafone website and text message advertisement. Your letter was dated October 10th. Firstly, my apologies that this reply has taken so long. It is however
still pertinent as Vodafone's advertising is identical, and i don't believe your analysis addresses the advertisement i was refering to.

Attached to the letter you have included a printout of Vodafone's web page dedicated to their offer. I agree that this page lays out in
detail what the offer is and fully explains the conditions.

I do not regard this as the advertisement however. I regard this as the full specifications of the offer. The advertisement is the banner ad on their homepage. This, as of right now (i have attached a picture), still says you can call and talk for two hours. It makes no mention of additional conditions. As i understand it, any advertisement has to clearly outline the offer. Conditions may disambiguate points but may not significantly change the content of the offer.

I got a phone call from my mother this weekend who believed that the offer applied to her. Like the friend i mentioned in my original
complaint she was shocked to learn she was paying full price. I would suggest that this implies that the (invisible) conditions significantly
and materially change the interpretation a good collection of people make of this (or similar) ad.

I note that shortly after i lodged my original complaint, Vodafone modified their ad with "conditions apply". Now these words no longer appear - perhaps they were removed after they received your judgement?

I no longer have the text that Vodafone sent out for this offer. If the text in your letter "...Mon - Fri 7pm - 7am.C..." was a quote of
the text then i withdraw my complaint on the advertisement on the SMS media."

Vodafone said:

"Thank you for letter of 21 February 2006 attaching Andrew McIntosh's response to your earlier query of 19 September 2005.

I agree with Mr McIntosh that the text message sent to the relevant customers (i.e. on a specific plan, for example, On Account customers on Get or Motormouth) received the correct messages relevant to their plan type clearly outlining the terms of the offer or promotion."

Second letter:

"VODAFONE WEBSITE & TEXT MESSAGE ADVERTISEMENT - COMPLAINT 05/319
I refer to your letter dated 7 September 2005. Below is a copy of the text message that was sent to Vodafone customers 31 August to 2 September 2005. These clearly set out the terms of the promotion.

PREPAY

Let yourself go! Call any Vdfn mobile or landline in NZ, pay for th 1st 3 mins & talk 4 upto 2 hrs FREE! Mon-Fri 7pm-7am. C Vodafone.co.nz 4 terms or call 236 (158)

ON ACCOUNT - CONSUMER (Get, Motormouth, TXT plans)

Pay for 3mins talk for 2hrs! (3mins uses incl'd mins 1st) Offer avail 4 calls to 021/029 & landlines in NZ Mon-Fri 7pm-7am. C Vodafone.co.nz 4 terms or call 236 (160)

ON ACCOUNT - MOBILISE

Pay for 3mins talk for 2hrs! (3mins uses incl'd mins 1st) Offer avail 4 calls to 021/029 & landlines in NZ Mon-Fri 7pm-7am. C Vodafone.co.nz 4 terms or call 236(160)


You will note that the website is also clear in setting out the time in which this promotion applies."


DECISION


Meeting 14 March 2006


Complaint 05/319

Appeal 05/037

Complainant/Applicant: T. Payne

Advertisement: Vodafone New Zealand Limited


Complaint: The advertisement on the homepage of the Advertiser's website said:

Let yourself go! Call
021, 029, or NZ
landlines, pay for just
3 minutes and talk
for up to 2 hours
FREE!
More

Using the link More further information on the website informed consumers about the special rate with: "Mon - Fri 7pm - 7am.Vodafone.co.nz 4 terms or call 236".

This information was also sent to customers as a text message.


Complainant, T. Payne, said: "As i am currently on a flat rate (i.e., whenever i call any of the numbers listed above i pay 50c per minute) i assumed that this meant that the rate above would apply whenever i called. Certainly there was nothing in the message, nor on their home page, to suggest otherwise.

It was only after hearing from a friend who's credit expired and then going on to their website to research the details that i found out that it only applies on weeknights from 1900. This isn't even their normal off peak hours (which would include the weekend)!

I believe the text sent out as an SMS and on their home page is intentionally misleading. I believe Vodafone fully expect people to make calls outside the period when the deal is actually on by mistake."

The Chairman ruled that the following provision was relevant:

Code of Ethics

Rule 2: Truthful Presentation - Advertisements should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the consumer, makes false and misleading representation, abuses the trust of the consumer or exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is not considered to be misleading).


The Chairman of the Complaints Board ruled that there were no grounds for the complaint to proceed. He said the conditions were clearly specified in the advertisements and accordingly, there was no apparent breach of the Code.


Application for Appeal

T. Payne wrote: "I refer to your letter regarding my complaint 05/319: Vodafone website and text message advertisement. Your letter was dated October 10th. Firstly, my apologies that this reply has taken so long. It is however still pertinent as Vodafone's advertising is identical, and i don't believe your analysis addresses the advertisement i was refering to.

Attached to the letter you have included a printout of Vodafone's web page dedicated to their offer. I agree that this page lays out in detail what the offer is and fully explains the conditions.

I do not regard this as the advertisement however. I regard this as the full specifications of the offer. The advertisement is the banner ad on their homepage. This, as of right now (i have attached a picture), still says you can call and talk for two hours. It makes no mention of additional conditions. As i understand it, any advertisement has to clearly outline the offer. Conditions may disambiguate points but may not significantly change the content of the offer.

I got a phone call from my mother this weekend who believed that the offer applied to her. Like the friend i mentioned in my original complaint she was shocked to learn she was paying full price. I would suggest that this implies that the (invisible) conditions significantly and materially change the interpretation a good collection of people make of this (or similar) ad.

I note that shortly after i lodged my original complaint, Vodafone modified their ad with "conditions apply". Now these words no longer appear - perhaps they were removed after they received your judgement?

I no longer have the text that Vodafone sent out for this offer. If the text in your letter "...Mon - Fri 7pm - 7am.C..." was a quote of the text then i withdraw my complaint on the advertisement on the SMS media."

I look forward to your reply. ..."


Procedure: The Application for Appeal, together with all other relevant correspondence and the Chairman's Ruling, was forwarded to the Chairperson of the Appeal Board.


The Chairperson of the Appeal Board noted that the application for appeal referred specifically to "the banner ad on their homepage", and the fact that this did not make any reference to the fact that conditions applied.

Having made this observation, the Chairperson was of the view that in the interests of natural justice, the complaint concerning the website advertisement only, should be referred to the Complaints Board for consideration.

Accordingly, the Chairperson ruled that the application be accepted on that ground.


Procedure: In accordance with the usual procedures of the Complaints Board, the Advertiser was forwarded a copy of the Complaint and requested to respond to the matters raised by the Complainant.


The Advertiser, Vodafone New Zealand Limited, said by correspondence of 13 February:

"I refer to your letter dated 30 January 2006

Vodafone does not believe that the conditions were unclear and that the advertisements were misleading in regards to its Let Yourself Go promotion. It is not Vodafone's intention to mislead its customers in anyway.

Details of the offer and conditions were and are clearly specified on the site. It is correct that the small banner on the home page does not specify 'conditions apply' but this page is e link to the main information page of the offer. 'Conditions apply' however is clearly noted on the 'Specials and Promotions' page and the web page dedicated to the Let Yourself Go promotion. Copies of these pages are attached for your information.

The webpage has since been updated as the offer/promotion has been extended by Vodafone until the end of June 2006 for its Prepay customers only. The pages have only been updated to take into account the offer extension and all other information remains on the pages mentioned above.

I have not addressed the issue of the text message as a copy of this was not provided. Please let me know if you require further comment in relation to this.

Should you have concerns or queries which I have failed to adequately address in this letter, please do not hesitate to contact me on the number provided below."

Further correspondence said:

"Thank you for letter of 21 February 2006 attaching A. McIntosh's response to your earlier query of 19 September 2005.

I agree with A. McIntosh that the text message sent to the relevant customers (i.e. on a specific plan, for example, On Account customers on Get or Motormouth) received the correct messages relevant to their plan type clearly outlining the terms of the offer or promotion."


The correspondence from A. McIntosh, Vodafone, said:

"I refer to your letter dated 7 September 2005. Below is a copy of the text message that was sent to Vodafone customers 31 August to 2 September 2005. These clearly set out the terms of the promotion.

PREPAY

Let yourself go! Call any Vdfn mobile or landline in NZ, pay for th 1st 3 mins & talk 4 upto 2 hrs FREE! Mon-Fri 7pm-7am. C Vodafone.co.nz 4 terms or call 236 (158)

ON ACCOUNT - CONSUMER (Get, Motormouth, TXT plans)

Pay for 3mins talk for 2hrs! (3mins uses incl'd mins 1st) Offer avail 4 calls to 021/029 & landlines in NZ Mon-Fri 7pm-7am. C Vodafone.co.nz 4 terms or call 236 (160)

ON ACCOUNT - MOBILISE

Pay for 3mins talk for 2hrs! (3mins uses incl'd mins 1st) Offer avail 4 calls to 021/029 & landlines in NZ Mon-Fri 7pm-7am. C Vodafone.co.nz 4 terms or call 236(160)


You will note that the website is also clear in setting out the time in which this promotion applies."


Deliberation


The Complaints Board perused the correspondence received together with the homepage advertisement. It noted that the Complainant was of the view that the banner advertisement on the home page was misleading as it did not provide any information about when the offer applied.

The Chairman directed the Complaints Board to consider the complaint with reference to the Code of Ethics, Rule 2.

The Complaints Board noted that the banner advertisement on the home page contained the message more in close proximity to the offer. In its view, the banner advertisement was merely a "call to action" stating the initial offer. The majority of the Complaints Board was of the view that a consumer reading the banner advertisement before it would see the link and would be likely to click on it to seek further details about the offer, such as the hours to which it was relevant. The Complaints Board also noted a line of print at the foot of the home page said "Terms & Conditions".

Accordingly, the majority of the Complaints Board was of the view that the banner page advertisement fulfilled the criteria required in indicating that there were conditions around the offer, and enabled the consumer to seek further information.

The Complaints Board also noted that the linked page addressed, in the first two paragraphs, the hours to which the offer applied.

Accordingly, the majority was of the view that the banner advertisement was not misleading and did not effect a breach of Rule 2 of the Code of Ethics.

On the other hand, a minority of the Complaints Board was of the view that the matter of the time range in which the offer applied was an important condition, and as such it should have been included with the banner advertisement. The minority was thereby of view that the advertisement, by omission, would be likely to mislead the consumer and for that reason it was in breach of Rule 2 of the Code of Ethics.

In accordance with the majority view, the Complaints Board ruled to not uphold the complaint.


Decision: Complaint Not Upheld