We've all seen posts on social media or ads on clickbaity online news sites offering "£500 to spend at [insert retailer]" or "Review our products from [retailer] and you can keep the products." In my experience (largely of acting for so-named retailers) most such operations are, at best, gathering participants' email addresses and consents as part of an underlying lead-generation and marketing business.
In effect, these operations use the attractive force of well-known brands to get people to part with their personal data. Sometimes, there is no product, prize or anything on offer at all that relates to the retailer dangled in the ads.
A ruling from the ASA this morning confirms that a complaint to the advertising watchdog is not really the best or most comprehensive way to tackle such activity. According to the ASA, provided that the ad contains a disclaimer making it clear who the advertiser is and that they have no connection to the named retailer, then no harm is done.
Of course, it is not possible to tell what other issues (if any) were raised before the ASA (an ongoing problem with transparency in its proceedings). Notably, Primark (the named retailer in the ads complained of) are not named as the complainant, so the complaint may have been narrower in scope than a complaint that a retailer might bring. However, there are a number of other issues that it would be useful for the ASA to take a stance on. For example, are these sorts of ads misleading because they do not make it clear:
- what the chances of being selected to receive products or a prize are (anecdotally, slim in the extreme); or
- that the primary purpose is not to provide a product review service, but to commercialise and re-utilise participants' data.
[Sidebar: my data protection colleagues may have additional or different thoughts on some of the issues raised by this sort of caper.]
The best way to tackle this sort of thing (if you are the named retailer in question) is often a solid cease & desist letter threatening not only a complaint to the ASA but trade mark infringement proceedings. Copyright too, where relevant. The advertiser can disclaim all they want with a view to avoiding a likelihood of confusion; the courts typically give such disclaimers short shrift anyway. And all the disclaimers in the world won't save an advertiser from a copyright claim or do much against a section 10(3) case on the basis that they are taking unfair advantage of a retailer's trade mark.
But aggrieved brand-owners have to take the initiative in the first place. Neither the ASA or anyone else can clean up the internet for them.
Ads (a) and (b) must not appear again in their current form. We told Marketing Punch Ltd t/a OfferX and GetTestKeep to ensure that all ads for their promotions, including ads prepared by affiliates, included their identity and contact details and must not imply that the promotion was run by any other company.