Advertising is growing. Statistics show that advertisement expenditure is to increase by another 4.3% in 2018[1]. Businesses are more ready than ever to invest in advertising, and with the growth of the internet and social media, the opportunities to do so are endless. However, with advertising comes a risk of complaint and with complaint comes legal questioning, and as recent Advertising Standards Agency (ASA) cases have shown, such as the recent matter involving Heinz, these grievances can lead to businesses simply having their adverts removed or taken down.
In a television advert for Booking.com, seen on 1 July 2017, the voiceover exclaimed that “at Booking.com…if you have to cancel, cancel. Most of the time it’s free and you can always book again”. The complainant challenged whether this claim was misleading. The company responded by saying that there were usually two pricing options for accommodation, the first option being non-refundable but a cheaper booking; the second was described as facilitating “free cancellation” but in turn was the more expensive option. They stated that this was a common custom among the travel industry and that customers would understand this. Despite the ASA agreeing with this, they found the literal wording of the advert to be too ambiguous, and it was still upheld under the British Code of Advertising Practice (BCAP) code rule 3.1 for misleading advertising. This rule states that the ‘advertisement must not materially mislead of be likely to do so’, a phrase which leaves room for interpretation and deliberation.
The ASA completed another ruling on a similar case with regard to broadcaster Sky on 7 February 2018. The advert promoted their new ‘Sky Sports Premier League Channel’ and stated that they would be showcasing 126 live games, but from the time of airing, some of the games had already been played, which lead to the complainant challenging whether or not the advert was misleading. The complaint was not upheld. The ASA investigated BCAP code rules 3.1, 3.3, and 3.10 but found the advert to not be in infringement of any of them. It was considered that viewers were likely to understand the declaration related to the entire season.
The fact that two somewhat similar cases have had two different outcomes would suggest that there is a fine line between what is deemed offensive or inoffensive, misleading or clear. It is vital that businesses try to fall on the legal side of the line, as producing adverts and subsequently having to withdraw them is both financially costly and time consuming.
Perhaps then, with the results of recent cases in mind, and the nature of the law in this field, businesses should act more on the side of caution, and seek legal advice before their adverts are broadcasted and go public.
[1] www.statista.com/statistics/272443/growth-of-advertising-spending-worldwide