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Advertiser: Green Flamingo Ltd
ASAI Code 7th Edition: 2.4(c), 3.1, 4.1, 4.4, 5.5, 5.6, 5.8, 5.15(a), 5.15(b), 5.15(c), 5.15(d), 5.15(e), 5.15(f), 5.15(g), 5.15(h), 5.15(i), 5.16, 5.17, 5.18, 5.40, 5.41(a), 5.41(b), 5.41(c), 5.41(d), 5.42
The email subject line stated:
Congratulations [username], your [brand name] shopping voucher is waiting for you!
In the body copy the claim was repeated “CONGRATULATIONS [USERNAME], YOUR [brand name] SHOPPING VOUCHER IS WAITING FOR YOU!”
Further text stated, “Win a [brand name] Package and a £200 Gift Card!” and “… we opened up a contest where you can win an (sic) [brand name] package and a gift card worth $200!”
The complainant considered the email headline to be misleading. When he opened the email to get the voucher, the message stated that a contest had opened where one could win [brand name] package and a gift card.
The advertisers said that they were not the sender of the email received by the complainant and that the email had been sent and signed by the company located in the USA.
They said that even though the email communication regarding the promotion was not sent by them, it stated that, “[…] we opened a contest where you can win [BRAND NAME] package and a gift card […]”, and that it clearly stated a possibility to win and therefore was not intended to mislead, nor was likely to mislead or otherwise be inaccurate, ambiguous, exaggerated, omissive or otherwise.
They said they believed for the reasons outlined, that the Promotion in question, and all the communications regarding the Promotion were entirely compliant with the ASAI Code.
The advertisers said that Green Flamingo Limited was extraneous to the email object of this complaint. They said that they were not the senders of the email neither directly nor indirectly, were not the creators of its content, and did not procure the creation of this email and its content to third parties.
They said that regarding the subject of the email, which read “your [brand name] shopping voucher is waiting for you!”, in their understanding it had to be interpreted as the possibility to receive a prize in case of a winning draw. They said, however, not being the author nor the procurer of the email, their interpretation was only based on their current knowledge and on the information available to them at this time regarding the modalities of participation to their competition that were made available to the user by the publisher.
They said that they believed it was implausible to interpret in good faith the subject of the E-Mail as a promise nor a guarantee to receive a prize, especially when contextualized with the body of the email and with the content of their landing page and with the terms and conditions of their campaign. Respectively, they said that it was possible to find disclaimers about the nature of the competition in the body of the email sent by the publisher and received by the complainant, which stated:“[…] we opened a contest where you can win a [brand name] package and a gift card […]”. They said that the landing page of their competition had a similar statement also displayed before asking the user to enter her/his personal data, where a disclaimer read: “CLAIM YOUR FREE CHANCE NOW”. They said that the terms and conditions of the competition clearly explained the rules for the participation to the competition, the identity of the promoter of the competition, the nature of the prize, the necessary permissions for the treatment of the personal data, any other factor likely to influence consumers’ decisions or understanding about the competition.
They said that given the amount of information immediately available to the user before entering her/his personal data and effectively taking part to the competition, they considered to be highly unlikely for anyone to interpret, in good faith, any promise of direct win or to be misled by a displayed exaggeration of the likelihood of winning the prize. They said that any attempt to interpret the aim of the competition keeping into consideration exclusively the subject of the email should be considered to be an unfaithful interpretation.
The advertisers said that the competition which was the object of this complaint was organized independently by Green Flamingo Limited. They said the latter relied on a collaboration with third parties to advertise and promote its competitions with an audience of users who previously opted-in to receive marketing communications by email and other means of communications from these third parties. They said the email received by the complainant had been signed by email@example.com, which indicated its address at 1962 Main St. 206, Sarasota, FL (USA). They said that, according to their research to identify this party, which in this case it could be identified through the URL to which was referred, and given the information available to them at the time, they could identify Lola Leads, a company registered in Leliegracht 10a 1015 DE Amsterdam, The Netherlands, as the sender of the E-Mail in question.
They said that the connection between Green Flamingo Limited and Lola Leads had been facilitated by TrackRevenue.com, a cloud-based software aimed at business’ advertising campaigns. They said the TrackRevenue.com represented the platform where the two parties (Green Flamingo Limited and Lola Leads) agreed to enter into a collaboration which was governed by the applicable terms and conditions. They said that as campaigns were continuously subject to changes, it was impossible to check all communication before they were sent by third parties. Therefore, they said, the obligations contained in the terms and conditions were clear and checked through regular due diligence check. They said that entering into this collaboration, Lola Leads agreed that:
“2.7. […] all marketing activities performed pursuant to this Agreement are in compliance with all applicable national and international laws and regulations, including but not limited to the applicable National Telecommunications Law, the General Data Protection Regulation, or any other applicable law which the Publisher has a duty to comply with.”
They said that these terms and conditions clearly forbid Lola Lead, and any other publisher, from providing the public with misleading or otherwise unlawful communications. They said the publisher, while promoting the competition, was always bound by any applicable law and regulation, such as the ASAI Code, and by accepting the terms and conditions they accepted to defend, indemnify and hold harmless from any damages in which Green Flamingo Limited might have incurred as a result of the publisher’s misconduct. They said that Green Flamingo Limited, therefore, operated on the basis of a principle of good faith and set out all the preventive measures reasonably required by the industry standards to fulfil all its legal obligations in compliance with all applicable laws.
The Complaints Committee considered the detail of the complaint and the advertisers’ response.
While the Complaints Committee noted that a third party had issued the email marketing communication, it had been created and distributed on behalf of the advertisers. The Committee noted the Code requirement that Primary responsibility for observing the Code rests with advertisers and that they cannot disclaim responsibility where they have caused, directly or indirectly, advertising to be created by direct agents or other third parties on their behalf. (3.1). As such the Committee considered that the advertisers were responsible for the content they had caused to be created.
The Complaints Committee considered the headline claim in the email subject line and in the body copy of the advertisement. They considered that it had been an unconditional offer of a shopping voucher to the recipient, whereas in fact the offer was an opportunity to enter a competition to win a shipping voucher. In the circumstances they considered the advertising likely to mislead and in breach of Section 4.1 of the Code.
The Complaints Committee told the advertisers to ensure that headline copy accurately reflected the offer being promoted.