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ASAI Code 7th Edition: 2.4(c), 4.1, 4.4, 4.9, 4.10, 4.33
The advertisement featured an image of a man holding a portable computer device surrounded by the Vodafone logo. The text surrounding the image read:
“Your business ahead of the curve. Our Gigabit Broadband. Morgan O’Driscoll Auctions can now upload thousands of images in seconds for their live online art auctions. The future is exciting. Ready? Vodafone business”.
The text to the left of the image read:
IRELAND’S LEADING ART AUCTION HOUSE”.
Javelin Group, Advertising Agency, made a complaint on behalf of their client Whyte’s Auctioneers. They challenged whether the advertisers could provide substantiation for the claim that Morgan O’Driscoll’s company was “Ireland’s leading art auction house” as they considered this statement implied superior or superlative status such as ‘number one’ ‘leading’ or ‘largest’. They considered that Morgan O’Driscoll’s turnover was considerably less than a number of other Irish auction houses and that such a claim required substantiation with market share data or similar proof.
The advertisers said their advertisement had featured Vodafone’s business customer Morgan O’Driscoll Auctioneer, alongside the message “Ireland’s Leading Art Auction House”. They said the claim itself had been secondary and had not formed part of the substantive Vodafone advertisement, however, they reviewed the advert with their legal team and with their advertising agency.
The advertisers said they disagreed that “leading” suggested ‘number one”, ‘leading’, or ‘largest’ and disputed the synonyms used in the complaint. In their view “leading” did not equate to “number one” or a definite position in the market but rather could refer to a number of people. Notwithstanding this fact, they said they had been informed that Mr O’Driscoll’s business sold 4,500-5,000 pieces of art each year and that no other auction house in Ireland, including Whyte’s, sold this number of pieces per annum.
They said that while their client’s turnover may be less than some other auction houses, the business hosted 16 Art Auctions per annum which was far more than any other Irish Art Auction House. A direct comparison to Whyte’s would be that they sold on average 1,400-1,800 pieces of art per annum over 4-6 auctions.
They stated that their client was also the market leader in terms of innovation and technology, being the first in Ireland to introduce online auctions with interactive, real-time bidding and true online auctioneering. The business was also the first to introduce virtual / augmented reality to enable site users to visualise art in their preferred locations.
The advertisers pointed out that Whyte’s described themselves on their website as “Ireland’s premier specialist art and collectibles auction house” and considered that claims such as this could be seen to contain a certain element of ‘puffery’. Based on this fact, they considered that the word ‘leading’ could be viewed in a similar light.
In conclusion the advertisers reiterated that Morgan O’Driscoll’s company sold more paintings than any other art auction house in Ireland and had more international viewings than any other Irish Art Auction House. When used specifically in relation to “Art Auction House”, they considered that his recognition as “Ireland’s leading Art Auction House” was entirely appropriate. They also pointed out, however, that the advertisement had now ceased and was no longer being published.
The Complaints Committee considered the detail of the complaint and the advertisers’ response. The Committee noted the response purported that the advertised claim could be seen to contain a certain element of ‘puffery’.
In this context, they noted that the Code stipulated that the use of exaggeration (“puffery”) or deliberate hyperbole that was unlikely to mislead was not necessarily in conflict with the Code provided the content did not affect the accuracy or perception of the marketing communication in any material way (Code Section 4.2).
The Committee noted that the claim made was specified as “Ireland’s leading ...” which was an absolute claim rather than a qualified claim and could not therefore be described as ‘puffery’ under the Code. While noting the claim had been supported by a number of criteria, no evidence had been submitted to substantiate a more definitive, objective and accepted measurement of what would constitute satisfactory criteria to support an absolute claim in the circumstances.
Accordingly, the Committee concluded that the advertisement, without qualification, had the potential to mislead and considered it to be in breach of Sections 4.1, 4.4, 4.9, 4.10 and 4.33 of the Code.
As the advertisement was no longer in use no further action was required in this case.