The Advertising Regulatory Board (ARB) has ruled that MTN misled customers with a Samsung Galaxy S22 promotion promising subscribers a free 25W charger with a cellphone contract.
The complaint was brought before the ARB by Jayden Gelman, who explained that once he received the phone, MTN informed him that the offer was only available while stocks lasted and were limited to the first 1,000 customers.
“MTN should have done more to communicate that it was limited,” Gelman said.
“If there was a note saying ‘while stocks last’ near the promotion, I would have enquired about stock prior to completing the purchase, and would have avoided disappointment. The advertisement is misleading.”
He pointed out that there was no asterisk on the special offer section of the page to indicate that there was fine print relevant to the promotion.
The ARB allowed MTN to comment on Gelman’s complaint. The mobile network operator referenced a case between Vox Fibre and Christopher McCreanor from September 2019 that it believes to be similar to the issue at hand.
“While it is common practice to include an asterisk or superscript number to denote that qualifying statements apply to an offer, it is not a requirement to do so,” MTN said.
The Vox Fibre v McCreanor case resulted in the ARB deeming Vox Fibre’s advertising as not misleading regarding an ongoing service relationship.
“Whether or not the advertiser refers to these terms and conditions, generally or specifically, the reasonable consumer would understand that they apply,” the ARB directorate ruled at the time.
“This means that an advertisement that fails to refer to the conditions, whether specifically or generally, will not automatically be misleading.”
Citing this, MTN said that its advertisement could not be automatically misleading because it did not use an asterisk to denote the promotion’s terms and conditions.
“In the circumstances, the reasonable consumer should be aware that terms and conditions apply to the various advertisements contained in the Y’ello Trader,” it added.
MTN argued that the fine print on page one of its promotions booklet — the “Y’ello Trader” — includes a note reading: “For full Terms and Conditions on all products and promotions, see page 51 or visit mtn.co.za”.
“The wording in the fine print on page 1 of the Y’ello trader makes it clear that all products and promotions in the Y’ello Trader are subject to terms and conditions,” MTN said.
The mobile operator noted that page 25 — the page on which the promotion was advertised — doesn’t contain any fine print or qualifying statements, while page 24 does.
“The Advertiser submits that pages 24 and 25 should be read together and page 25 in particular cannot be viewed in isolation,” it said.
However, the ARB, citing Clause 4.2.1 of Section II of the Code of Advertising Practice, found in favour of Gelman.
“In the case of the MTN special offer, it’s not a contract governing an ongoing service relationship that is being considered, but a special offer relating to a free item’s availability at the start of the contract,” its ruling reads.
It said that the comparison to the case between Vox Fibre and Christopher McCreanor is therefore not relevant to the matter at hand, adding that a mention of the terms and conditions at the start of the booklet is insufficient.
The ARB explained that special offer booklets like the “Y’ello Trader” are often just flipped through rather than read page by page.
“The Directorate therefore believes that the Advertiser should do whatever they can to clearly convey the existence of all relevant terms on a section-by-section basis,” it said.
“Given this, the failure to draw sufficient attention to the limited stocks makes the advertising misleading, and in breach of Clause 4.2.1 of Section II.”
The ARB issued the ruling on the matter despite the campaign having already concluded. It said it would be a useful reference point for future campaigns.
MTN told MyBroadband that it has noted the ARB’s ruling and would comply with its recommendations.
“It is important to note that the promotion stated, under terms and conditions, that the promo offer (Samsung Galaxy S22 25W charger) was limited,” it emphasised.