Ringtone specialist Jamba! GmbH was not impressed with an ASA ‘Complaint upheld’ finding following 298 complaints about TV ads. Jamba triggered the ASA Independent Review procedure but didn’t want the original finding published in the meantime.
Crazy Frog must only sing after the watershed
Topic: Mobile marketing
Who: Jamba! AG t/a Jamster
Where: The High Court
When: 21 September 2005
In the long running battle relating to Jamba!'s advertising campaigns, the Advertising Standards Authority recently scored a tactical win against Jamba! GmbH (trading as Jamster Clubs), the creators of the Crazy Frog, Seetie the Chick and Nessie the Dragon offerings.
The story so far….
As previously reported in recent months on marketinglaw.co.uk, both the ASA and the Independent Committee for the Supervision of Standards of Telephone Information Services (ICSTIS), have scrutinised the marketing materials produced by Jamba! relating to the Crazy Frog ringtones as a result of the large number of complaints received from the public. Complaints have focused on the fact that advertisements have not made it sufficiently clear that by sending a text to numbers advertised, subscription services would be provided rather than a single ringtone. One other reason the Crazy Frog advertising materials have attracted so much attention and criticism is because it was felt the materials and the offerings themselves were designed to be particularly attractive to children and children were finding themselves billed for services they did not intend to sign up to.
Back in April 2005 the ASA upheld the complaints and made it clear that information in Jamba!'s marketing materials had to be clear, consistent and not misleading. Jamba! then applied for an injunction at the High Court to prevent the ASA publishing its adjudication to keep its contents confidential pending an appeal by Jamba! to the Independent Reviewer of ASA Adjudications.
The view of the High Court
Mr Justice Lloyd Jones rejected Jamba!'s application for an injunction saying it was in the public interest to publish the ASA's adjudication regardless of the current appeal and costs were also awarded to the ASA.
ASA Director General Christopher Graham has been quoted in the press as saying: 'This ruling sends a warning to the whole industry that ads for ringtones and other mobile phone subscription services must not appeal to under 16. It also reminds the advertising business as a whole that the ASA carries out certain public law functions and that it will be supported by the courts."
So what exactly did the ASA adjudication say?
The ASA stressed their concern that the Jamba! advertisements could appeal to children and they referred to a recent survey conducted by the Wireless World Forum survey which demonstrated that over 9 million children aged below 15 in the UK owned a mobile phone. Further research has also asserted that over 35% of ringtone buyers are aged between 12 and 24 years and research of this nature meant that the ASA recognised that while the majority of ringtone purchasers may be adults, children still represented a significant size of the market and that products such as the Jamba! subscription services would be of interest to children even if they were not actively marketed to children.
The ASA acknowledged that it is not always possible for parents to monitor their children's' use of mobile phones and that advertisements must therefore not take advantage of children's' inexperience or credulity. Although the Jamba! adverts carried the message "16+ and bill payer's permission", the service could easily be provided once a consumer had texted the number shown on the screen and it was not possible for Jamba! to check the age of a consumer before sending the ringtone required and the cost therefore being incurred. The ASA therefore considered that a stricter timing restriction was required to keep the material away from children as they had been clearly influenced by the campaign given the nature and number of the complaints the ASA received. To conclude, the ASA therefore imposed a restriction on the adverts being aired before 9pm.
Why this matters
The ASA's adjudication could prove to be damaging to Jamba! and other similar mobile content companies, as it potentially deprives them of access to a potential key market – children, when it is the current appetite of children for ringtones and mobile downloads that greatly contributes to the success of such companies.
What are the implications for mobile content providers?
All mobile content companies should pay attention to the fact the ASA have now clearly condemned marketing strategies which consciously target children or which have the potential to misled children. It must therefore be ensured that advertisements are not misleading as to the fact subscription services are concerned rather than a one-off payment for a ringtone and companies wishing to use animations in their advertisements should think about the appeal this could have to children.
Mobile content companies now also have to be aware of the new rules created by the UK mobile operators to regulate premium rate subscription services and WAP/xHTML services billed using Premium Text and their associated marketing campaigns. These rules became effective as from 31st August 2005 and will now form part of the terms and conditions all content companies will enter into with the UK mobile operators if they wish to make their services available to the UK market. Subscription services now well and truly have the eye of regulation upon them and this is something that companies offering such services can no longer ignore.
Jamba! have been quoted as saying they believe the ASA ruling was 'flawed' and they will continue to dispute the ruling through the courts to get it over-turned. It therefore looks like we have not yet heard the end of the story…….