Who: ING Bank (ING), a complainant and the Dutch Advertising Code Committee (ACC)
Where: The Netherlands
When: 30 January 2019
Law stated as at: 28 February 2019
What happened:
ING introduced a mobile banking application enabling customers to process mobile payments. Over time, the app did not support older versions of the Android mobile operating system. This resulted in a misleading advertising complaint from one of its customers.
The complaint
The complainant argued that ING had failed to provide complete information about the use of its app by not making it clear that the app did not work on every tablet or mobile phone.
In 2017 the complainant installed the app on his Android mobile phone, after ING announced that it would stop using transaction authentication number or ‘TAN codes’ for authentication purposes. Initially, the app worked as advertised, but after a while the app stopped processing payments. The complainant was running the app on Android 4.4.2, but the app stopped supporting this version of Android. In order to use the app Android 5.0 or higher was required. By omitting information about the required operating system to run the app, the complainant argued that ING was misleading tens of thousands of users.
ING’s defence
In its defence, ING explained that it launched the app in 2017 as an alternative to the use of TAN codes for authorising payment. ING argued that it clearly communicated that it would phase out TAN codes within the coming years. For those users who did not wish to use the app to confirm payments, ING offered an alternative in the form of the ING colour scanner.
ING’s main reason for not supporting older versions of Android was that it could no longer guarantee the safety and security of payments. ING admitted that it could have done a better job at informing users about the version required to run the App. However, ING disputes that this omission qualifies as misleading advertising.
The ACC’s Decision
The ACC found that that ING had informed its customers that the app would gradually replace TAN codes for confirming mobile payments. This information was provided in the context of the existing relationship between ING and its customers. As a result, these communications about the use of the app – which was provided for free – lacked the promotional character required to qualify as advertisements within the meaning of Article 1 of the Dutch Advertising Code (DAC). As the statements fell outside the scope of the DAC, the ACC was not competent to further assess the validity of the statements. Therefore, the ACC rejected the complaint.
Why this matters:
Although this case did not constitute misleading advertising, it does address an interesting issue about the requirement to provide sufficient information on technical support. Marketing statements can be quickly outpaced by advancements in technology. Especially in the sphere of mobile phones, new models and operating systems are constantly introduced. Companies should apply caution when making broad statements about the availability of their apps and services across devices and operating systems. On the other hand, the average customer is also aware of these developments and will understand that they will need to update or upgrade to be able to access the latest versions of apps and services. In this particular case, although the ACC did not need to rule on the point since it had decided that the communications did not constitute advertising, ING would have likely had a strong safety and security argument to not support older versions of operating systems.
