The recent ‘BT Privacy’ campaign featuring Jeremy Clarkson fired an exponential increase in Telephone Preference Service registrations. But was BT’s advertising as clear as it should have been and how would it fare under the up and coming EU Unfair Commercial Practices Directive?
Where: The Advertising Standards Authority
When: December 2005
Competitors of BT complained about its advertising for the new "BT Privacy" service. A press ad said "Uninterrupted time with your family is priceless. With BT Privacy it's now also free … BT has launched a free BT Privacy sign-up service that helps block unwanted sales calls. It also gives you free Caller Display* so you can check who's on the end of the line before you pick up, or more to the point before you decide not to". The asterisk led to small print text that said "BT line required. Customers with other call providers eligible if they have made some calls with BT .. conditions apply."
Radio ad complaint
A radio ad for the same service invited listeners to register for the "free sign-up service to help you block unwanted sales calls and enjoy your privacy in peace".
A listener who was paying line rental to BT but had his calls charged by another operator believed the radio ad was misleading for not explaining that you also had to take calls from BT to qualify for BT Privacy.
Press ad complaint
A competitor complained that it was misleading for the press ad to describe BT Privacy as "free". It believed the service was permanently available to all BT customers as part of their package. Accordingly the complainant felt BT Privacy should be described as "inclusive" as required by the new CAP policy on use of the word "free" introduced earlier in 2005.
The ASA upheld the complaint in relation to the radio ad. It felt that listeners would infer that the service was available to all BT customers, not just those who took both calls and line rental from BT.
As regards the complaint about the description of BT Privacy as "free", the issue was less simple.
Under the new CAP policy, if an element of a service is included as part of an overall package for which payment has to be made, then that element cannot be described compliantly as "free". There are, however, exceptions. One of these applies where an existing package is upgraded but the price remains the same.
Upgraded package exception
The relevant part of the (CAP broadcast) Helpnote states "if an extra element is added … to form a more attractive product, the element could be described as "free" for a reasonable period as long as the original package (without the extra element) had been available beforehand at the same price, again for a reasonable period. The periods that would be regarded as "reasonable" would have to be judged according to the circumstances."
In this case BT argued that the previous package, called "Caller Display" had simply been upgraded by the addition of the "BT Privacy" element. The charge for the "Caller Display" package pre BT Privacy was the same as for the improved package including BT Privacy.
The ASA bought the argument and in this case considered that the timing of the advertising in question was within the "reasonable period" saving. However, the ASA advised BT and relevant broadcast ad clearance bodies to seek advice from the appropriate Copy Advice team on the interpretation of a "reasonable" period of time. Note the slipped in advice to the BACC and RACC to consult CAP – something of a novelty and maybe a sign of things to come.
Why this matters:
Published on the same day as two other "Complaint upheld" findings in respect of "free" descriptions of elements of telecoms packages (involving advertisers Centrica trading as Onetel and Telecom Plus trading as Utility Warehouse) this decision highlights continuing confusion, particularly in the telecoms industry, as to the proper application of the new CAP "free" policy.
Another noteworthy aspect of the decision is its failure to make any reference to the fact that a considerable element of the BT Privacy package was in fact free to the public in any event, without having to sign up for a BT line or take calls on it.
This happens by way of the statutory Telephone Preference Service ("TPS"). The TPS entitles any member of the public to register their phone number with the TPS, free of charge, if they do not wish to receive unsolicited marketing calls to that number. Since June 2004 this system has also been available to limited companies. All cold callers must check with the TPS list before making calls and under the relevant part of the BT Privacy package, BT simply registers punters with the TPS on their behalf.
Low TPS profile
As the BT Privacy campaign has shown, however, the profile of the TPS in the UK up to the time of the campaign featuring Jeremy Clarkson had been pretty low. This is no longer the case, however, with an exponential increases in those registered with the TPS, now standing at over 11,000,000.
BT Privacy ads misleading?
Research has indicated that a significant proportion of those who have signed up to the TPS in recent months as part of the BT Privacy package were already registered with the TPS. Did they sign up to BT Privacy on the misunderstanding that it offered some enhanced form of the TPS?
No complaint along these lines appears to have been raised, but the situation might be different with the implementation in 2007 of the EU Unfair Commercial Practices Directive.
New "Unfair Practices Directive impact?
As reported by way of Osborne Clarke partner Nick Johnson's comments on the issue in the January 2006 issue of Marketing Direct magazine, the Directive will require that throughout Europe, with effect from December 2007, certain specified practices will be contrary to law.
One of these "misleading commercial practices" will be "Presenting rights given to consumers in law as a distinctive feature of the trader's offer."
As Osborne Clarke Nick Johnson commented "A service such as BT Privacy will need to tread carefully .. BT is ensuring those who register for the service will not receive unsolicited marketing calls, but essentially all BT is doing is signing people up to the TPS". BT has commented in reply: "a distinctive feature of BT Privacy is not registration with the TPS, but instead the offer of free caller display .. If this were deemed unlawful under the directive, it is something we would challenge".
Nick Johnson still disagrees, saying "it is still potentially a problem if they are presenting the opt-out registration with the TPS as something distinctly offered by BT, regardless of whatever else BT packages it with".
There are no signs that the provisions of the Unfair Commercial Practices Directive will be retrospective, something for which BT may be thankful.