HomeInsightsNeed to Know – 2012.11.05

Contact

+44 (0)20 7612 9612
info@wiggin.co.uk

It is intended for reference purposes only and does not consitute definitive advice. Links to the original source materials are included where there are no restrictions in terms of access. References may also be made to sources that require separate registration or subscription. A link to a source does not necessarily imply endorsement of the source or the material provided through the link. For further information on any of the matters discussed in this summary please contact Alexander Ross. If you have any comments, queries or suggestions please contact us at comments. All suggestions and comments are most welcome. If you do not wish to receive this summary you can contact us at unsubscribe@wiggin.co.uk.

General

European Commission issues consultation on “Future and Emerging Technologies”.

Media Standards Trust submits response to House of Lords Select Committee on Communications’ inquiry into media convergence.

OFT raises concerns over consumer reforms proposed in Government’s consultation on the supply of goods, services and digital content.

Technology

Court of Appeal endorses High Court’s decision that tablet computers produced by Samsung do not infringe Apple’s Community registered design relating to its iPad.

Data Protection

House of Commons Justice Select Committee publishes Report on proposed EU data protection reforms, saying European Commission “needs to go back to the drawing board”.

Information Commissioner’s Office issues consultation on its notification process.

Broadcasting

Ofcom consults on payment of costs and expenses in regulatory disputes.

High Court finds against three individuals behind two companies that ran extended warranty service plans for Sky’s satellite television equipment in competition with Sky’s authorised provider.

Publishing

Court of Appeal gives two rulings on the amount of libel damages.

Copyright Licensing Agency launches new Code of Conduct.

Members of House of Lords debate relationship between media standards and regulation.

Press Complaints Commission rules that local newspaper published excessive detail about method of suicide.

Advertising

ASA finds British Airways Holiday’s manual auditing process was incapable of demonstrating availability of “from £549” Barbados offer.

General

European Commission issues consultation on “Future and Emerging Technologies”.

The Consultation is part of the Commission’s Digital Agenda.  The aim is, the Commission says, “to identify promising and potentially game-changing directions for future technological research”.

According to the Commission, “The research directions for future and emerging technologies will shape our economy for decades to come”.  Therefore, it is inviting scientists, researchers, engineers, innovators, artists, entrepreneurs and individuals to submit their ideas before 30 November 2012.

The Future and Emerging Technologies (FET) programme forms a key part of the Commission’s Horizon 2020 research proposals.  The objective of FET is “to foster radical new technologies by exploring novel and high-risk ideas building on scientific foundations”.

The consultation is structured under two themes: research direction in FET and arguments for the importance of this research.  All interested parties can submit their ideas on what this research should be and its expected impact.  The contributors to the public consultation are invited to answer a series of concrete questions on FET research and its contribution to some of the great societal challenges of our age, like global warming, energy supply, pollution, ageing of society, global crises, peace or democratic deficit.

The answers to the public consultation will be used as input for identifying topics for future FET work programmes.  For a link to the consultation, click here.

Media Standards Trust submits response to House of Lords Select Committee on Communications’ inquiry into media convergence.

In August 2012, the House of Lords Select Committee on Communications announced a new inquiry, “Media Convergence and its public policy impact”, exploring the nature and consequences of digital convergence across the media industries, the public, and public policy.

The Media Standards Trust submission to the inquiry focuses on the implications of convergence for democracy and the public sphere, concentrating on four significant and related issues:

  • Public access to limitless information and content across multiple platforms: this is the most fundamental aspect of convergence from the public’s perspective, the MST says, combined with the ability to create, copy and modify content and self-publish through multiple platforms and outlets.  Public policy consideration needs to be given to the shift from analogue to a converged digital world of almost limitless information;
  • Trustworthiness of information and content in news: in a converged world where similar material is published on multiple platforms, it is difficult for the public to assess the trustworthiness of information, the MST says.  This will become more difficult, unless there is greater consistency in the provision of information regarding provenance, and tools to help the public judge and assess what they read/watch/hear;
  • The blurring of boundaries between news, public relations content, and advertorial: increasing amounts of commercial content is being published as news, the MST says.  In many cases it is not made transparent to the public what the motivations or commercial interests are behind the information displayed in news content.  With increased convergence, without a public policy intervention, the public are likely to find it increasingly difficult to distinguish between news, public relations content and advertorial (e.g. endorsements); and
  • Access to public interest news and journalism: in a converged media environment, there will be areas of the UK, and news subjects, which are unprofitable for commercial media organisations to cover, the MST says.  Public policy consideration needs to be given to whether, and how, these geographical and subject areas will be covered in the future.

For a link to the full submission, click here.

OFT raises concerns over consumer reforms proposed in Government’s consultation on the supply of goods, services and digital content.

The Government published its consultation paper “Enhancing Consumer Confidence by Clarifying Consumer Law” in July this year. In the paper it set out proposals to clarify consumer remedies regarding the sale of goods, to provide a statutory guarantee and statutory remedies for consumers accessing the supply of services, and to introduce a separate rights and remedies regime for consumers accessing digital content such as music, software and games.  In the introduction to its consultation response the OFT stresses that the proposals should be “simple for consumers and businesses to understand”.  It believes some of the proposals may result in more confusion.  In particular, the categorisation of digital content and services into “digital content”, “related services” and “enabling services” is confusing, the OFT says.  It also points out the impracticalities of modelling all the rights and remedies for the supply of goods, services and digital content on the proposed rights and remedies for goods. 

Nevertheless, the OFT welcomes the proposals in principle, including the idea of replacing implied terms with statutory guarantees, although it is concerned that consumers’ existing rights should not be reduced as a result.  In relation to goods, of particular concern is that a change to a fixed 30 day right to reject coupled with a fixed scale of deductions for use following rescission (where the right to reject is not exercised) would “tip the balance” against consumers.  For services, the OFT considers that the proposed statutory remedies do not go far enough.  In particular it is concerned about the limitation of compensation available under “price reduction” and the limitation on consumers’ rights to terminate the contract where appropriate.

As regards digital content, the OFT agrees that this should not be categorised as either goods or services and agrees that the consumer should be entitled to rights to quality similar to those for goods, along with a right to reject.  However, it particularly does not like the sub-categorisation of “related services”.  For example, it suggests that the approach to streamed content should be reconciled with that under the Consumer Rights Directive, which does not distinguish streamed content as any kind of related service.

The OFT accepts, in principle, that a consumer should be obliged to delete from his device any faulty software that he has rejected, but would like this obligation fine-tuned.  In particular, it should be recognised that not all consumers will have the knowledge or ability, without the supplier’s assistance, to delete content.

Further, as with goods and services, the OFT does not believe that the proposal for deductions for use are appropriate where the consumer has paid for the entire content and had to pay the full price to repurchase it.  It acknowledges the proposal for a minimum threshold of £100 that would exclude most digital content from any requirement for its deduction, but points out that this is not future proofed.  To access the OFT’s response to Enhancing Consumer Confidence by Clarifying Consumer Law: consultation on the supply of goods, services and digital content in full click here.

Technology

Court of Appeal endorses High Court’s decision that tablet computers produced by Samsung do not infringe Apple’s Community registered design relating to its iPad.

In this high profile case that has received much media attention, Samsung originally sought a declaration that three of its Galaxy tablet computers did not infringe Apple’s CRD.  Apple counterclaimed for infringement.  HHJ Birss QC had concluded that, taking into account the existing design corpus and analysing the various similar features between Apple’s CRD and Samsung’s Galaxy tablet computers, the overall impression on the informed user was different.  Therefore, there was no infringement.  The court also ordered that Apple should be required to place advertisements in relevant newspapers stating that the High Court had found no infringement of its CRD by the Galaxy tablets, as well as a statement on Apple’s UK website to the same effect.  Apple appealed both the non-infringement decision and the publicity order.

As far as infringement was concerned, Apple argued that HHJ Birss QC was wrong in principle to decide that the Galaxy tablet computers produced an overall different impression on the informed user.  It said that the judge had approached the design corpus wrongly and had failed properly to consider the designs as a whole.  It said that the judge had gone about the comparison exercise piecemeal, feature by feature, and had failed to have regard to the overall impression of the CRD as compared with any of the items of prior art contained within the design corpus.

The Court of Appeal disagreed that this is what the judge had done.  In fact, Sir Robin Jacob noted, HHJ Birss QC had said both at the outset of his judgment and at his conclusion that he needed to consider the overall impression of the design as it would strike the informed user, bearing in mind both the design corpus and the extent of design freedom.  The Court of Appeal found no fault with the judge’s assessment of the degree of design freedom where tablet computers are concerned, or with his assessment of the design corpus.  Further, Sir Robin said, he had assessed the significance of differences to the backs of the Galaxy tablets and the CRD “in a manner which I do not see can be bettered”.  Sir Robin concluded by saying that “… if I were forming my own view of the matter, I would have come to the same conclusion and for the same reasons”.

Sir Robin was also highly critical of the decision of the German court made on 24 July 2012 as regards one of the Galaxy tablets.  That court had granted a pan-EU injunction against Samsung from selling it, despite that court not being the court first seised of the claim for a declaration of non-infringement.  There was also no basis for an interim injunction as the UK court had already granted a final declaration.  Moreover, it had not sat as a UK court, but as a Community design court.  Therefore, HHJ Birss QC’s declaration of non-infringement was binding throughout the Community.  “It was not for a national court – particularly one not first seised – to interfere with this Community wide jurisdiction and declaration”, Sir Robin said.

As for the publicity order, HHJ Birss QC had ordered that within seven days of the judgment, Apple had to post a notice on its UK website for a period of six months stating that the High Court had found no infringement by Samsung of Apple’s CRD, together with a link to the judgment.  Such notice also had to be published in the Financial Times, the Daily Mail, The Guardian, Mobile Magazine and T3 magazine.

Sir Robin found that he had “no doubt that the court has jurisdiction to grant a publicity order in favour of a non-infringer who has been granted a declaration of non-infringement” on the grounds that a declaration is a discretionary equitable remedy and the injunction is an adjunct to the declaration.  However, it will not always be appropriate to grant it, he said.  Whether or not depends on all the circumstances of the case.  The test is whether there is a real need for such an order to dispel commercial uncertainty. 

Sir Robin said that he had “come to the firm conclusion that such an order is necessary now” because of the confusing situation created by the German court’s decision.  As to the form of the order, however, Sir Robin said that “No more than that which is proportionate is necessary”.  As regards publicity in the newspapers, he affirmed HHJ Birss QC’s order.  However, as regards publicity on Apple’s homepage, he found that Apple had a genuine interest in keeping it uncluttered.  It was therefore appropriate and proportionate simply to provide a link to the judgment entitled “Samsung/Apple UK judgment”.  (Samsung Electronics (UK) Ltd v Apple Inc [2012] EWCA Civ 1339 (18 October 2012) – to read the judgment in full, click here). 

Data Protection

House of Commons Justice Select Committee publishes Report on proposed EU data protection reforms, saying European Commission “needs to go back to the drawing board”.

EU proposals to update data protection laws are too prescriptive, according to a new Report by the Justice Select Committee. 

Sir Alan Beith MP, Chairman of the Justice Committee, said: “The current data protection laws for general and commercial purposes need to be updated, as they do not account for the digital world.  However, we agree with the Information Commissioner’s assessment that the system set out in the draft Regulation “cannot work” and is “a regime which no-one will pay for”.  Therefore, we believe that the Commission needs to go back to the drawing board and devise a regime which is much less prescriptive”.

The processes and procedures that are specified within the proposals “do not allow for flexibility or discretion for businesses or other organisations which hold personal data, or for data protection authorities”, the Report says.  The Committee therefore concluded that the proposals should focus on those elements that are required to achieve the Commission’s objectives, whilst compliance should be entrusted to Member States’ data protection authorities. 

Despite its criticisms, the Committee welcomes the potential benefits that an updated law could bring.  For individuals, their rights would be strengthened, and in particular the new framework would guard against some of the more unwelcome and often criticised aspects of digital data processing.  From a business perspective, the benefits would mainly accrue through the effective harmonisation of laws, the Report concludes.

Sir Alan Beith MP said: “We understand that multinational firms have been lobbying heavily for greater harmonisation.  We can also see how harmonisation will also aid small and medium sized companies who wish to offer their goods and services across borders.  Currently a firm would have to deal with 27 separate sets of domestic legislation, and may be put off by the potential legal costs of complying with each.  Whilst multinationals can take on this burden, small firms cannot.  If the draft Regulation is passed, this worry will be removed as the law in Romania will be the same as in Sweden, and indeed within the UK itself”.

Whilst the draft Regulation would cover general data protection, the draft Directive is specifically concerned with data protection for law enforcement purposes. Sir Alan Beith MP said: “We have been told that the draft Directive does not apply to domestic processing by law enforcement agencies within the UK.  This needs to be placed beyond doubt.  Additionally, it needs to be made clear that the Directive must not impact on the ability of the police to use common law powers to pass on information in the interests of crime prevention and public protection”.   To read the Parliament press release in full and for a link to the Report, click here.

Information Commissioner’s Office issues consultation on its notification process.

The ICO is currently reviewing its notification service and the public register of data controllers in order to make it easier for data controllers to notify and for visitors to use and navigate the register. 

Data controllers who process personal data are generally required to notify the ICO and have a description of their processing published on a public register.  It can amount to a criminal offence not to notify.

The ICO wants to improve the process; to make it easier for those who need to notify and to make the public register itself more helpful and accessible.  For example, it is proposing introducing an online and telephone payment service to allow data controllers to pay for and renew their notification quickly and easily.  It is also proposing to change the format of the public register to make it easier for those who need to notify to do so, and also to make the public register itself more helpful to members of the public.

The ICO wants to hear from data controllers and visitors who regularly use the public register to help it make its future service “even more useful to our customers and other stakeholders”.  The consultation closes on 30 November 2012.  For a link to the consultation documentation, click here.

Broadcasting

Ofcom consults on payment of costs and expenses in regulatory disputes.

On 7 June 2011, following consultation, Ofcom issued revised guidelines for the handling of disputes in which it said that it would provide separate guidance regarding costs and expenses.

The consultation document sets out Ofcom’s proposed approach to:

  • recovering its own costs and expenses incurred when making a determination for resolving a dispute pursuant to sections 185-191 of the Communications Act 2003; and
  • requiring payment of another party’s costs and expenses incurred in connection with a dispute.
  • Section 3 of the document sets out:
  • the types of disputes in respect of which Ofcom may consider cost recovery;
  • the factors that Ofcom will take into account when deciding whether to recover its own costs and expenses and/or require payment of another party’s costs; and
  • the methodology and process that will be used to calculate amounts to be recovered/paid.

Ofcom intends to publish guidance in winter 2012/13 after it has considered comments received.  The guidance will not have binding legal effect. 

In general Ofcom says that it would expect the current practice, under which both Ofcom and the disputing parties bear their own costs, to continue for the majority of disputes that Ofcom resolves.  It is not Ofcom’s intention routinely to recover Ofcom’s costs of disputes or to require costs payments to disputing parties.

Ofcom says that it will, if appropriate, consider whether any party’s costs should be paid on a case-by-case basis.  However, it says, it is not possible to identify in advance all cases in which it will decide that costs should be recovered, and Ofcom “cannot fetter its discretion in this regard”.  The proposed approach should therefore be read as a general guide, and are subject to the specific facts and circumstances of each individual case.  The consultation is open until 10 December 2012.  To access the consultation documentation, click here.

High Court finds against three individuals behind two companies that ran extended warranty service plans for Sky’s satellite television equipment in competition with Sky’s authorised provider. 

Mr Justice Arnold had previously ruled that the two companies, now in compulsory liquidation, were liable for breach of confidence, database right infringement, trade mark infringement and passing off.  This time the court found that all three individuals were jointly and severally liable for the companies’ breaches in that they intended and procured that the companies should operate in such a way as to infringe Sky’s rights and pass themselves off as authorised by Sky.

Sky’s satellite television equipment came with a standard 12-month warranty.  Sky’s authorised provider marketed “extended warranty” service plans to cover the equipment once the standard warranty expired.  The first and second defendant companies, Digital and Nationwide Digital, traded in the provision of service plans for Sky equipment without Sky’s authority and in competition with Sky’s authorised provider. 

Sky argued that Nationwide and later Digital, and after them a partnership called Satellite Services, unlawfully came into possession of and re-utilised confidential customer data taken from Sky’s customer databases for the purpose of marketing extended warranty service plans for Sky equipment and that in the course of doing so they infringed Sky’s database right.  Sky further claimed that Digital and Nationwide infringed its SKY trade marks and passed themselves off as connected with, or authorised by, Sky. 

Sky also alleged that three individuals were jointly and severally liable with the two companies as they procured the two companies, acting by others, to carry out the acts complained of, or that they personally carried out, on behalf of the companies, the acts complained of or that they committed the acts complained of pursuant to a common design. 

In April 2012, on Sky’s application for summary judgment against the individuals, Arnold J held that the two companies and Satellite Services had each committed the wrongful acts alleged.  He also gave judgment against two of the individuals in respect of their acts when trading in partnership as Satellite Services.  However, he declined to grant Sky summary judgment against the three individuals on the basis of their joint liability.  He held that although the evidence established a strong case that each of them was jointly liable for at least some of the wrongful acts of the two companies, it did not follow that Sky should be granted summary judgment. 

This time, it was clear to the court that all three individuals each intended, procured and shared a common design that the two companies carry out the wrongful acts.  The judge noted in particular that the two companies were run “wholly informally”: there were no board meetings, decision-making was informal and, where important matters were concerned, by discussion agreement between the individuals.  In short there was “no clear distinction between the corporate and the personal”.  There was a blurring of the roles of the three individuals all of which left the judge with the “strong impression” that nothing significant would happen within the company without all three of them knowing about it.  (British Sky Broadcasting Group plc v Digital Satellite Warranty Cover Ltd (In Liquidation) [2012] EWHC 2642 (Ch) (1 October 2012) – to read the judgment in full, click here).

Publishing

Court of Appeal gives two rulings on the amount of libel damages.

In the joined cases of Cairns v Modi and KC v MGN Ltd ([2012] EWCA Civ 1382), the Court of Appeal was asked by the defendants in each case to re-examine the levels of damages for libel originally awarded by the High Court.  The Court of Appeal dismissed the appeal by Mr Modi against the amount of damages he was to pay Mr Cairns, but allowed the appeal by MGN against damages it had been ordered to pay to KC and reduced the amount from £75,000 to £50,000.

In Cairns v Modi, the defendant was found to have sent the cricketer, Chris Cairns, a libellous “tweet” accusing him of match fixing.  Mr Justice Bean had assessed damages on the basis that Mr Cairns was a professional cricketer of good character and reputation.  As such, his starting point was £75,000.  However, he had considered that the sustained and aggressive assertion of the plea of justification by Mr Modi at the trial (in which the words “liar”, “lie” and “lies” were used 24 times together with other offensive submissions) should increase the damages recoverable by 20%.  Taking account of the aggravation Bean J awarded £90,000.  Mr Modi appealed the amount awarded on the grounds that it was excessive and did not sufficiently take into account certain mitigating factors.

The issues raised on appeal were:

  • The need for proportionality in libel awards;
  • The scope of the tweet’s publication;
  • The Judge’s approach towards the need for vindication;
  • Whether the judge should have given a more detailed breakdown of the award; and
  • The limited impact of the settlement reached with Cricinfo, the online cricketing magazine that had published comments by Mr Modi.

The court found that Bean J’s reasoning and the amount of the award, based on a starting point of £75,000 with a £15,000 uplift, were “proportionate to the seriousness of the allegation and its direct impact on Mr Cairns himself and will serve to vindicate his reputation”. The appeal was therefore dismissed.

In KC v MGN Ltd, the People newspaper had falsely accused the claimant, who was the father of “baby P”, of being a convicted child-rapist.  The High Court had assessed damages payable to the claimant at £75,000.  The judge had used £150,000 as the starting point and then reduced the amount by 50% to take into account certain mitigating factors. 

MGN appealed the amount awarded on the basis that the starting point of £150,000 was excessive and not enough weight had been given to the fact that the newspaper had maintained the claimant’s anonymity and it had publicly corrected the publication at an early stage.

The Court of Appeal agreed with MGN finding that “given the limited number of those who might have read or heard of the false allegation made against him, and appreciate that it did indeed refer to him, and the relative speed with which it was comprehensively and unequivocally regretted and withdrawn, the starting point was too high”.  The court decided that a proportionate figure would have been £100,000.  However, it agreed with the High Court judge that the 50% discount it had applied, although “as high as any discount so far selected by any judge exercising this jurisdiction”, was appropriate.  Accordingly, damages were reduced to £50,000.  (Cairns v Modi and KC v MGN ltd [2012] EWCA Civ 1382 (31 October 2012) – to read the judgment in full, click here).

Copyright Licensing Agency launches new Code of Conduct.

The new Code sets out how the CLA will deal with its licence holders and other copyright users.  Although written to apply specifically to the CLA, the Code aligns with and incorporates guidelines published by the British Copyright Council in its document Principles of Codes of Conduct for Collective Management Organisations.

The Code sets out the CLA’s obligations to its licensees and publishes details about the CLA, its licences and the standards of behaviour and service it aims to achieve.  In particular it details key service standards and publishes a written complaints procedure for the first time.

The CLA says that, completed following a period of consultation with licensees, their representatives and other users, “the Code demonstrates CLA’s commitment to best practice in customer service and internal governance”.

The CLA has also signed up to the independent Ombudsman Service for Copyright Licensing.  For a link to the full Code, click here.

Members of House of Lords debate relationship between media standards and regulation.

Baroness O’Neill of Bengarve (Crossbench), tabled and opened the debate.  She focused on two questions: 1) whether media regulation can be used to support media standards without risk of censorship; and 2) if it can, what sort of media regulation would be compatible with a free press?

Baroness O’Neill emphasised the need for transparency: “If the media were required to be transparent in some of the ways in which they have insisted other organisations and professions should be transparent, we might add a great deal to media standards.  I suggest three possible forms of transparency.  One is openness about payments from others… Secondly, there should be openness about payments to others… Thirdly, there should be openness about interests.  Owners, editors, programme makers and journalists, like many others, have interests”.

Lord Janvrin (Crossbench) said: “… we are much more likely to be willing to continue to pay for news and opinion if we know that they are of the highest standards; in other words, if we trust the provider.  This seems to be the best reason for effective press regulation”

In Lord Sugar’s (Labour) opinion, “journalists should be licensed.  Moreover, editors should be made responsible for what is printed in their newspapers or broadcast on their TV channels and they, too, should be licensed.  I do not see any room for self-regulation.  There should be an authority which dishes out, for want of a better expression, yellow cards or ultimately red cards for those who continually abuse the system-or, to use our American cousins’ terminology, “three strikes and you’re out””.

Viscount Younger of Leckie (Conservative), responding on behalf of the government, looked at the issue of phone hacking, saying: “The government are determined to get to the bottom of all that journalists and their agents were doing in hacking into phone messages, what the police knew when, what they did about it, and how we might learn lessons for the future.  But it is important to remember that phone-hacking is illegal; regulatory reform should not therefore be about creating a system that prevents illegal behaviour, as that remains a matter for the courts.  What it must do, however, is tackle the culture and practices that provided the context in which that illegal behaviour became widespread”.

He continued: “The outcome of any new system must be to give the public confidence that the press is operating responsibly and that all complaints will be transparently and fairly handled, while allowing the press to remain free to continue pursuing world-class journalism”.  To read the Parliament press release in full, click here.

Press Complaints Commission rules that local newspaper published excessive detail about method of suicide.

The PCC has ruled that an article in the Wiltshire Gazette and Herald breached Clause 5 ii (Intrusion into grief or shock) of the Editors’ Code of Practice by including “excessive detail” about a method of suicide in an inquest report about the death of a man who had taken his own life.

The article contained the name of the gas the man had used, information about how it had been obtained, and the manner in which it had been inhaled.  Although in its adjudication the PCC made clear that newspapers are entitled to report inquests in cases of suicide, it emphasised that they must take care to limit the level of detail, in accordance with the terms of Clause 5 of the Editors’ Code.

Charlotte Dewar, Head of Complaints and Pre-publication Services commented: “The Code’s requirement to avoid excessive detail exists to minimise the risk of imitative suicides.  The Commission works hard to promote responsible reporting of suicide.  Today’s ruling is a reminder of the high standard the Commission expects of editors in this area”.  For a link to the adjudication, click here.

Advertising

ASA finds British Airways Holiday’s manual auditing process was incapable of demonstrating availability of “from £549” Barbados offer.

A TV ad for holidays to Barbados featured a voiceover stating “Seven night holidays including flights from £549 per person with British Airways.”  On-screen text stated “British Airways BARBADOS 7 night Holidays Accommodation and Flights from £549pp … Book by 31st January 2012”.

The complainant, who had been unable to find any holidays at the advertised price on BA’s website, challenged their availability.

The ASA said that rather than demonstrating 10% availability for the travel period, the manual audit provided by BA Holidays merely demonstrated that from the test bookings made 10% were available.  The ASA did not consider that sufficient and considered that, when demonstrating availability, advertisers needed to meet a different criterion: that 10% of holidays overall were available at the “from” price, with that availability spread evenly across the travel period. 

The ASA also considered that the booking data supplied by BA Holidays only showed that some customers had been able to book at the offer price and did not demonstrate that 10% of the holidays were available at that price across the travel period.  The ASA also noted flight and hotel capacity documents, but again it did not consider that those documents, which showed only snapshots of availability at given times, demonstrated the spectrum of availability of holidays at the price that had been claimed in the ad.  The ASA was also concerned that the ad did not state the travel period for the offer.

The ASA therefore considered that the ad exaggerated the availability of the holiday at the advertised price and, because BA Holidays did not have the means of demonstrating 10% availability of that price, the ad should have made clear that availability was extremely limited. Because it did not, the ASA concluded that the ad breached BCAP Code rules 3.1 (Misleading advertising), 3.9 (Substantiation), 3.18 and 3.24 (Prices).  To read ASA Adjudication on British Airways Holidays Ltd (31 October 2012), click here.

Topics