Complaint: 06/427

Vodafone "Bestmate" Television Advertisement

Details

Complainants
M. Ritchie
advertisers
Vodafone
Year
2006
Media
Television
Product
Telecommunications
Clauses
Decision
Upheld / Settled
ASA Links
Website Listing
Decision Document

Document

DECISION

Meeting 31 January 2007


Complaint 06/427


Complainant: M. Ritchie
Advertisement: Vodafone New Zealand Limited


Complaint: The television advertisement for Vodafone's "Bestmate" Plan shows different scenarios of people talking to their miniature "Bestmate", who is presented as if they were a mobile phone.

At the end of the advertisement is the following information:

Voice over: "Vodafone Bestmate Get together wherever. Call, Video and Text your Bestmate all you like for $6 a month."


Visuals:
BESTMATETM
TOGETHER, WHEREVER


CALL, VIDEO
AND TXT
YOUR
BESTMATETM

0800 BESTMATE
SEE VODAFONE.CO.NZ FOR DETAILS


ALL YOU
LIKE FOR $6
Per Month

0800 BESTMATE
SEE VODAFONE.CO.NZ FOR DETAILS

Complainant, M. Ritchie, said:

"Where: In Christchurch on Channel 3 during the evening of 2 Nov 2006.
Who: Vodafone
Product: Bestmate

Complaint -The vodafone bestmate campaign.

They don't at any stage say that it is only for prepay customers, with the fact being that it is as account or contract customers not being applicable until next year.

This is what I want to complain about as the ad at no stage points out that it is for prepay only. It does direct you to the vodafone website, but it doesn't answer the questions up front you have to go digging for them. I don't think that I am the only one feeling annoyed by this as their phones and emails are all overloaded!! Look forward to your response."


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 Advertiser
, Vodafone New Zealand Limited, also on behalf of the Agency, Creative Juice, said:

"We write on behalf of Creative Juice as well as Vodafone in response to the above complaint which you provided to us under cover of your letter of 20 November 2006. The complaint is that Vodafone's BestMate television advertisement does not specify that BestMate is available only to Prepay customers, and implies that the advertisement is therefore misleading.

BestMate is indeed available only on Prepay, but the advertisement does not imply otherwise. Vodafone does not therefore accept that there is any substance to the complaint.

The substantive detail of the offer ($6 per month rate for unlimited calls, video and txts to one Vodafone number) was expressed through both the voice-over and on-screen graphics of the advertisement. For further details, viewers were directed to free-call 0800 BESTMATE or to visit hyperlink., which details included the fact that it was only available for Prepay customers. The details were disclosed to all customers before they were told how to take up the offer.

The complainant may be disappointed that the offer is only on Prepay, but he cannot claim to have been misled. He was directed to call 0800 BESTMATE or see the website for further details, and having done so, discovered that the offer was not to his liking. Vodafone expects to be in a position to offer BestMate to On Account customers by the middle of next year, and has issued press releases to this effect. For now, however, BestMate is available to the complainant only on Prepay.

We trust that this addresses any questions the Board may have but are, of course, happy to answer any questions or provide any further information which the Board may find helpful."


Television Commercial Approvals Bureau (TVCAB) said on behalf of the media:

"TVCAB has been asked to respond to this complaint under the Code of Ethics - Rule 2 - truthful presentation.

The complainant was annoyed that he was unaware, until he went to the Vodafone website, that Bestmate applied only to prepay customers.

At the close of this commercial clear graphics direct viewers to 0800 Bestmate or the Vodafone website which provide information as to all terms and conditions. It is not possible for a customer to sign up to any promotion without making contact with Vodafone through either of these avenues. (Decision 06/371 did not uphold a complaint when details of a promotion were clearly listed through phone or website links).

As details are clearly available on an 0800 number or on the website TVCAB does not consider the commercial misleading and for this reason submits the complaint be not upheld."


Deliberation


The Complaints Board perused the relevant correspondence and viewed the television advertisement. It noted Complainant, M. Ritchie, was of the view that the advertisement was misleading, as it did not clarify that the BestMate offer only applied to Prepay customers and not On Account customers.

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


The task before the Complaints Board was to determine whether the advertisement contained any statement or visual presentation or created an overall impression which directly or by implication, omission, ambiguity or exaggerated claim was misleading or deceptive, or likely to deceive or mislead the consumer.

The Complaints Board noted the response from Vodafone, where it said: "....The substantive detail of the offer ($6 per month rate for unlimited calls, video and txts to one Vodafone number) was expressed through both the voice-over and on-screen graphics of the advertisement. For further details, viewers were directed to free-call 0800 BESTMATE or to visit hyperlink., which details included the fact that it was only available for Prepay customers. The details were disclosed to all customers before they were told how to take up the offer."

Turning to the advertisement, the Complaints Board took into account that graphics directed viewers to call 0800 Bestmate or visit the Vodafone website for further information. It then took into account that the offer in the advertisement was only applicable to pre-pay customers, not all Vodafone customers. As this was a significant condition in relation to the offer, that is the offer was only available to a certain group of users, the Complaints Board was of the view that this condition should have been clearly specified in the advertisement and it was not sufficient for a consumer to have to seek that information through other channels.

Having made this observation, the Complaints Board said the advertisement created an overall impression which by omission was likely to mislead the consumer, and thereby it was in breach of Rule 2 of the Code of Ethics.

The Complaints Board ruled to uphold the complaint.


Decision:
Complaint Upheld



ADVERTISING STANDARDS COMPLAINTS BOARD
PO Box 10-675 Wellington
Telephone (04) 472-7852
Facsimile (04) 471-1785
Email [email protected]
Website http://www.asa.co.nz


DECISION

Chairman's Ruling

12 March 2007

Complaint 06/427

Appeal 07/003

Complainant: M. Ritchie
Advertisement: Vodafone New Zealand Limited
Applicant: Vodafone New Zealand Limited


Complaint:
The television advertisement for Vodafone's "Bestmate" Plan shows different scenarios of people talking to their miniature "Bestmate", who is presented as if they were a mobile phone.

At the end of the advertisement it contains the following information:

Voice over: "Vodafone Bestmate Get together wherever. Call, Video and Text your Bestmate all you like for $6 a month."

Visuals:
BESTMATETM
TOGETHER, WHEREVER

CALL, VIDEO
AND TXT
YOUR
BESTMATETM

0800 BESTMATE
SEE VODAFONE.CO.NZ FOR DETAILS

ALL YOU
LIKE FOR $6
Per Month

0800 BESTMATE
SEE VODAFONE.CO.NZ FOR DETAILS
Complainant, M. Ritchie, said:

"Complaint - The vodafone bestmate campaign.

They don't at any stage say that it is only for prepay customers ... It does direct you to the vodafone website, but it doesn't answer the questions up front you have to go digging for them. ... their phones and emails are overloaded."


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


The Complaints Board ruled on 31 January to uphold the complaint, saying (in part):

"... Turning to the advertisement, the Complaints Board took into account that graphics directed viewers to call 0800 Bestmate or visit the Vodafone website for further information. It then took into account that the offer in the advertisement was only applicable to pre-pay customers, not all Vodafone customers. As this was a significant condition in relation to the offer, that is the offer was only available to a certain group of users, the Complaints Board was of the view that this condition should have been clearly specified in the advertisement and it was not sufficient for a consumer to have to seek that information through other channels.

Having made this observation, the Complaints Board said the advertisement created an overall impression which by omission was likely to mislead the consumer, and thereby it was in breach of Rule 2 of the Code of Ethics."


Application for Appeal


Applicant, Vodafone New Zealand Limited, also on behalf of their Agency, Lowe, submitted the following:

"We write to request an appeal of decision 06/427, which you provided to us under cover of your letter of 14 February 2007. We appeal on the basis that the decision is against the weight of evidence. This request is made on behalf of Vodafone and Lowe (not Creative Juice as was noted in the decision), the advertising agency involved.

The evidence available to the Board clearly demonstrated that there was nothing misleading or deceptive in the advertisement. The advertisement made no representation whatsoever about the availability of Vodafone's new BestMate service, nor did it create any false impression in that regard. In deciding to uphold the complaint, Vodafone believes that the Board has, with respect, erred as to what constitutes misleading and deceptive in the circumstances.

Vodafone does not accept that the complainant has been misled or deceived. Instead, the complainant hoped to enjoy the service while remaining an On Account Vodafone customer, and mistakenly assumed this was possible. When, as directed by the advertisement, the complainant checked the terms of the BestMate offer, he/she learnt that BestMate was available only on Supa Prepay plans. There is nothing to prevent the complainant from taking up a Supa Prepay plan with BestMate in addition to, or (subject to any applicable early termination charges) in substitution for his/her On Account plan, but the complainant made an unwarranted assumption that he/she could have BestMate as an On Account Vodafone customer.

Vodafone's view is that the complainant's mistake cannot be attributed to misleading or deceptive conduct on Vodafone's behalf.

The meaning of to 'mislead or deceive'

Section 9 of the Fair Trading Act ("Act") is similar to Rule 2 of the Code of Ethics and it uses identical terms "misleading" and "deceptive" which have been the subject of judicial consideration. Section 9 provides that "no person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." In Unilever New Zealand Limited v Cerebos Gregg's Limited (1994) 6 TCLR 187 (a decision under the Australian Trade Practices Act upon which section 9 is based), the Court of Appeal found that in relation to misleading or deceptive conduct under section 9 of the Act:

In trade description cases the focus is upon what is said and done rather than what is not said or done. The legal obligation is to avoid falsehood; it is not an obligation to provide compendious explanations. Of course silence in particular circumstances can amount to a misrepresentation as can literal truth but in each case only when as a result there is affirmatively conveyed another meaning that is false.

In determining the definition of "misleading or deceptive", Gault on Commercial Law (FT9.07) refers to Weitmann v Katies Ltd (1977) 29 FLR 336; ATPR 40-041 at p343; p 17,444, where Franki J found:

The most appropriate meaning for the word `deceive' in the Oxford Dictionary is: "To cause to believe what is false; to mislead as a matter of fact, to lead into error, to impose upon, delude, take in..."
The most appropriate definition in that dictionary for the word 'mislead' is: "To lead astray in action or conduct; to lead into error, to cause to err."

The BestMate advertisement in no way makes representations as to the availability of the offer to Vodafone On Account customers nor does it somehow convey such a meaning. The fact that the offer is available only to Supa Prepay customers does not in any way contradict the advertisement or make it false. The offer is open to anybody who has or takes up a Vodafone Supa Prepay plan. The complainant appears to have assumed that BestMate could be applied to their On Account plan. There is nothing in the advertisement upon which that assumption could reasonably be based. The advertisement does not make any representation, express or implied, about to whom BestMate is available. New Zealand consumers with mobile phones (the target audience) are well aware that each mobile operator provides different plans and that different services are available on each plan. It is not reasonable for a consumer to believe, without some positive representation, that any offering will apply to their existing plan, even where the offering is made by their current provider. Had the advertisement stated that BestMate was available to all Vodafone customers in conjunction with all Vodafone plans, Vodafone accepts that this would be misleading or deceptive. To represent that BestMate was available to all Vodafone customers without explaining that customers must have or take up Supa Prepay plans would be equally culpable. But no such representation has been made. The product is new to the market and consumers are clearly directed to the Vodafone website and 0800 BESTMATE information line to find out more.

Decision 06/371

The current complaint is similar to Board decision 06/371. In that decision, the advertisement complained of stated:

"Right now at Vodafone you can give us your Telecom mobile, connect to a 24 month You Choose plan and take a Sony Ericsson V600i 3 G mobile for FREE."

The complainant argued that because the Vodafone advertisement did not explicitly state the need for the customer to be making a new connection to Vodafone, the advertisement was misleading. In declining to uphold the complaint, the Board noted that "the details of the promotion had been clearly listed on the website and additional details had been available through a link to terms and conditions."

Consumer Protection

In our view, the consumer protection objectives of the Advertising Standards Authority are not infringed by the advertisement under decision. The advertisement did not direct viewers to commit to the product. It directed them to the Vodafone website and 0800 BESTMATE information line for further details. There was no risk that consumers would inadvertently sign up for BestMate if they did not have Supa Prepay, accordingly there is no risk of consumer harm. The availability of BestMate is quite unlike a term which the consumer is unaware of until they are committed to a product (such as undisclosed additional costs).

In any event, Vodafone submits that the availability of the BestMate offer is not a term and condition of the offer. BestMate is a service available on a particular plan, Supa Prepay. It is not, and for technical reasons cannot presently be, available on any other plan. An analogy can be made to an advertisement for particular tyres that does not specify which cars fit the tyres. Reasonable consumers know that not all tyres fit all cars. They have regard to the advertisement's express direction to find out more about the tyres, and so learn whether or not the advertised tyres are suitable for their cars..

It is Vodafone's strong view that the matter should be referred to the Appeal Board and its appeal upheld. We would be happy to provide any further information and appear at the consideration of the appeal should that assist.

In the interim, there is no risk that there will be any consumer harm, even if the Appeal Board does not agree with Vodafone's views. Immediately upon notification of the Board's decision, Vodafone amended the advertisement to address the Board's views. However, Vodafone wishes to pursue its appeal on a matter of principle."


The Chairman perused the application for appeal, noting that the Applicant submitted that the Complaints Board's decision was against the weight of evidence.

The Chairman said the Complaints Board had fully considered all the evidence before it, and had ruled that the advertisement, by omission, created the impression that the offer was available to all Vodafone customers, and was thereby misleading.

He noted in particular the Complaints Board's determination where it said:

"It [the Complaints Board] then took into account that the offer in the advertisement was only applicable to pre-pay customers, not all Vodafone customers. As this was a significant condition in relation to the offer, that is the offer was only available to a certain group of users, the Complaints Board was of the view that this condition should have been clearly specified in the advertisement and it was not sufficient for a consumer to have to seek that information through other channels."

The Complaints Board had been of the view that silence in the advertisement on the limitation around the offer which was not available to many of Vodafone's current customers under their current plans, had amounted to a misrepresentation of the offer, rendering it likely to mislead the consumer, and thereby in breach of Rule 2 of the Code of Ethics.

Having made the above observations, the Chairman said that the Complaints Board's Decision was not against the weight of evidence. Accordingly, he ruled that the Application for Appeal did not fulfill any grounds for an appeal to proceed.


Chairman's Ruling:
Application for Appeal Declined