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daveza
Honorary Master
- Joined
- Apr 5, 2004
- Messages
- 47,683
http://www.asasa.org.za/ResultDetail.aspx?Ruling=3878
18 Sep 2007
Mr Moorad lodged a consumer complaint against Telkom’s “do” broadband campaign.
The television commercial from this campaign states, inter alia, “…do movies, gaming, education, business, music, Broadband…” The words “Includes 1 Gigabyte internet usage” appear at the end of the commercial.
COMPLAINT
In essence, the complainant submitted that the advertising states that one can “do” music, movies and on-line gaming, but only affords the user 1GB. This is misleading as a DVD-quality movie is at least 4GB and online gaming needs at least 20 GB monthly to play daily.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.1 – Substantiation
• Section II, Clause 4.2.1 – Misleading claims
RESPONSE
The respondent submitted arguments on the merits of the matter but also advised that it will amend its Internet advertising by including a disclaimer.
ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.
The complainant took issue with the campaign arguing that one can not download music, movies and play online gaming with just 1GB as implied.
The respondent submitted that it will insert the following disclaimer on its website terms and conditions:
“Depending on the activity (movies music, gaming, education, communication, business or on line gaming) the onus is on the customer to ensure that there is sufficient bandwidth to cater for such activity.”
The television commercial already contains states, “Terms and Conditions apply”.
In light of this, the Directorate needs to determine whether or not this amendment would address the complainant’s concerns for both Internet advertising and the television commercial.
Website
Other than taking issue with the respondent’s “campaign”, the complainant did not specify any shortcomings on the respondent’s website which promotes this product. He merely argued that it is offering functionalities that cannot realistically be achieved when using these packages.
The website shows 3 different packages with different bundles and a host of pop-up screens and interactive menus that contain detailed information about each package. Accordingly, a hypothetical reasonable person is afforded the opportunity to examine the benefits of each package to see if it caters for their needs. The website promotes this product as “do Broadband – South Africa’s portal to music, movies, games and more…”. The consumer is therefore aware that there are different sized packages available in relation to the offer.
Notwithstanding this, the Directorate noticed certain inaccuracies and discrepancies, all of which relate to the concerns raised by the complainant:
Firstly, on the “do Movies” option, the website shows an image of Leon Schuster from one of his movies. A hypothetical reasonable person would interpret this to mean that one would be able to download and watch movies with this product. This is the same interpretation as the complainant had.
However, when clicking on this option it becomes apparent that this is not possible. This functionality merely offers short video clips from YouTube and the opportunity to view wildlife on Wildearth. The only association with full-length movies is that one may purchase tickets on-line for Nu Metro or Ster Kinekor and read movie news.
The “do Gaming” option claims to bring customers “South Africa’s number 1 online gaming service”. While it does appear to offer the opportunity of online gaming, there is no indication that this will only function on the larger and more expensive of the available packages.
The respondent did not dispute this and relied on the proposed disclaimer “Depending on the activity (movies music, gaming, education, communication, business or on line gaming) the onus is on the customer to ensure that there is sufficient bandwidth to cater for such activity.”
This is problematic for two reasons: firstly because it does not alert the consumer to the material fact that only the top-end packages possibly support this functionality; and secondly because the proposed amendment would be tucked away under the lengthy terms and condition section where, at best, it would merely clear up a misleading impression already created.
In light of the above, the website material is currently not sufficiently clear as to the capabilities and limitations of each “do” package, which is likely to mislead consumers. While the Directorate accepts that consumers have a duty to ensure that the correct package for their individual needs is purchased, they can only do so when all material information is displayed upfront, which is not the case currently.
Accordingly, the website material contravenes Clause 4.2.1 of Section II of the Code.
Given the above:
The website advertising must be amended to clearly reflect the material limitations;
The process to amend the advertising must be actioned with immediate effect on receipt of ruling;
The amendment must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
The advertisement may not be used again in its current format in future.
Television commercial
The commercial only promotes the 1Gigabyte package while stating that it offers “movies”, “gaming”, “education”, “business”, and “music”. Unlike the website, there is no indication that there is more than one package. The voiceover merely states “…broadband access from only R199 per month…”.
The hypothetical reasonable person is therefore likely to interpret the commercial to mean that the 1GB package will allow one to do all the indicated things. The complainant disputed this and argued that 1GB would not be sufficient to allow all the activities listed.
The respondent did not deny this and chose to rely on the fact that the commercial states, “Terms and conditions apply”. It would therefore appear ex facie that one can not do all the advertised activities on a 1 GB package.
The ASA has a long-standing principle that an advertiser cannot use a disclaimer to rectify a misleading impression already created by the advertisement. In Globel / D Carter / 9314 (6 August 2007), for example, the Directorate ruled, “It is also trite that advertisers cannot rely on a disclaimer to clear up any confusion that may have been created in the body copy of an advertisement. The fact that there is another charge that is incurred when consumers utilise the respondent’s airtime is a material condition that should be prominently visible in the same way that the respondent’s rates are visible”.
Similarly, the statement relied on by the respondent in the current matter cannot suffice, as it does nothing to negate or correct the impression created that all the listed activities are possible on the 1GB package.
The fact that all the indicated capabilities are not available on the advertised package is a material condition that the respondent has a responsibility to disclose to viewers.
Given that it does not, the commercial is likely to mislead consumers in their expectations about the capabilities of the advertised product. Accordingly, the commercial contravenes Clause 4.2.1 of Section II.
Given the above finding:
The commercial must be withdrawn;
The process to withdraw the commercial must be actioned with immediate effect on receipt of ruling;
The withdrawal of the commercial must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
The commercial may not be used again in its current format.
It is not necessary to consider the other clause at this point. The respondent’s attention is also drawn to Clause 15.5 of the Procedural Guide.
The complaint is upheld.
