Omit from an ad significant information relevant to a decision to respond and legal and/or CAP Code woe may result. But what about banner ads where there could be space challenges? Recent CAP News confirms that after a recent ASA verdict there may be a way as Stephen Groom highlights.
Topic: On-line advertising
Who: BT, Sky, the Advertising Standards Authority and the Committee of Advertising Practice
When: January 2009
Law stated as at: 29th January 2009
In a "CAP News" update the Committee of Advertising Practice, the sister body to the Advertising Standards Authority ("ASA") which writes the "CAP" Code of Advertising, Sales Promotion and Direct Marketing, focused on the compliance problems sometimes created by the small size of banner ads online.
The issue is often how, when it is making a specific offer, running a promotion or comparing products, an advertiser can cram in all the information it needs in order to comply with the ASA requirement to include all significant information likely to influence a consumer's decision to take up an offer.
"Misleading omissions" law echo
This rule is echoed in the law in the form of the recently introduced Consumer Protection from Unfair Trading Regulations 2008 ("CPRs"), particularly in the provisions dealing with "misleading omissions."
These state at Regulation 6 that the omission or hiding of material information will be an "unfair commercial practice" and hence a criminal offence. In this context "material" is defined in the Regulations as "the information which the average consumer needs, according to context, to take an informed transactional decision."
BT/Sky comparative banner case
The CAP News item refers to a recent ASA adjudication on a BT banner ad. Here a comparison with Sky call packages was being made and the ASA found that the BT ad omitted significant differences between the packages such as calls to international destinations.
The complaint in respect of the ad was therefore upheld, but the CAP News item points out that there would probably have been no problem if the BT banner had included a link to a landing page on which all the required information was prominently shown.
CAP goes further by stating that although the BT case was decided on its own facts, "we believe the one click rule is likely to apply to all significant terms and conditions that won't fit on a banner ad."
Why this matters:
As with the basic disclosure rule, this CAP pronouncement is very much in line with the law on the issue as contained in, again, the CPRs.
Regulations 6 (1) and (2) provide that whether material information has been criminally omitted will take into account
- the limitations of the medium used to communicate the commercial practice and
- where the medium used….imposes limitations of space or time, any measures taken by the trader to make the information available to consumers by other means.
It would seem highly likely that a court would regard the inclusion of all the requisite disclosure prominently on a page just one click away from a banner would be a satisfactory measure that was sufficient to avoid the commission of an offence.
So in truth CAP is doing no more than giving practical application in the online space to an existing requirement of law, but nevertheless this is still a useful saving to bear in mind when space is at a premium online.