HomeInsightsNeed to Know – 2012.12.17

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General

Intellectual Property Office publishes Report on Codes of Conduct for Collecting Societies.

Ofcom publishes seventh International Communications Market Report into global communications market.

European Commission consults on protection of confidential business and research know how.

Government publishes draft legislation introducing tax reliefs for video games, high-end TV and animation industries.

Technology

European Parliament approves unitary patent regime.

Intellectual Property Office consults on changes to Patents Act 1977.

Data Protection

Joint Select Committee on the draft Communications Data Bill publishes report saying the Bill must be “significantly amended” to deliver only necessary data that law enforcement needs.

Information Commissioner’s Office launches consultation on new draft code to help organisations handle subject access requests.

Publishing

Media Standards Trust responds to Lord Justice Leveson’s report saying it supports proposals for voluntary system of independent regulation backed up by “limited” legislation.

Government announces about-turn on media CFAs.

European Commission accepts legally binding commitments from four international book publishers and Apple for sale of e-books.

Joint Select Committee on Human Rights publishes Report on Defamation Bill calling for greater protection for freedom of expression.

Sport

Advocate General Jääskinen says Court of Justice of European Union should dismiss FIFA and UEFA’s appeals concerning television broadcasting of Football World Cup and the European Championships.

Corporate

European Commission says it plans to modernise European company law and corporate governance.

Gambling & Betting

Culture, Media and Sport Joint Select Committee invites written submissions on draft Bill reforming remote gambling regulations in Great Britain.

ASA finds industry term “Best Odds Guaranteed” used in William Hill ads misleadingly implied that odds could not be bettered by other bookmakers.

Advertising

ASA finds re-targeted ad for hotel accommodation misleading on account of discrepancies between actual room rates and out-of-date booking information contained in the cache that fed the re-targeted ad.

ASA finds American Apparel ad inappropriately sexualised a model who appeared to be a child.

General

Intellectual Property Office publishes Report on Codes of Conduct for Collecting Societies.

The IPO explains that the aim of the project is to assess the costs and benefits of a Code of Conduct for Collecting Societies, their members and users.

In October 2011, the IPO produced an initial impact assessment of the move to adopting a Code of Conduct for Collecting Societies.  It stated that the main benefits of adopting a code would include improvements in collecting societies’ governance and transparency, and the delivery of better information to both members and users.

It also listed a series of hypothetical benefits that could flow from this.  The Report published this month interrogates the plausibility and extent of these hypothetical benefits through comparative analysis of the Australian Collecting Societies’ Code of Conduct adopted in 2002 and other models for the regulation of Collecting Societies used across Europe.  For a link to the Report, click here.

Ofcom publishes seventh International Communications Market Report into global communications market.

The Report examines take-up, availability, price, and use of broadband, landline telephone, mobiles, TV, radio and postal services.  It compares the UK with 16 countries: France, Germany, Italy, the US, Canada, Japan, Australia, Spain, the Netherlands, Sweden, Ireland, Poland, Brazil, Russia, India and China.

The Report finds that UK consumers lead the world in using the latest TV technology to enhance their viewing experience, including accessing TV online and owning smart TVs and digital video recorders.  The report also reveals that smartphones and tablets are increasingly driving website traffic, while UK consumers have broken the £1,000-a-year barrier for spending online.  For a link to the Report, click here.

European Commission consults on protection of confidential business and research know how.

The Commission says that concerns have been voiced regarding the effectiveness of the legal protection against the misappropriation of trade secrets in the internal market.  The differences between national laws of Member States are claimed to be such as to make it difficult to ensure that the right protective measures against such misappropriation are being applied in cross-border business.  Further, it says, the current redress possibilities are claimed not to represent a sufficiently strong deterrent against theft of confidential business information, which could dissuade the sharing of confidential business information across borders with business partners who could offer valuable possibilities to develop new markets for innovative products.

In view of these concerns, the Commission says that it has decided to analyse the current situation in the EU in more detail and to collect views with regard to the protection of business and research know-how in the EU.  The consultation forms part of the Commission’s wider strategy on the intellectual property framework.  The consultation closes on 9 March 2013.  For details on how to respond, click here.

Government publishes draft legislation introducing tax reliefs for video games, high-end TV and animation industries.

On 11 December the Government published draft tax legislation, as well as responses to consultations that have taken place over the summer.  The legislation will be included in the Finance Bill 2013 and implements a number of tax policies announced at Budget 2012 and in the Autumn Statement 2012.  The campaign to introduce the tax reliefs was led by Chares Moore of Wiggin and Stephen Bristow of Saffery Champness.

The draft legislation introduces, amongst other things, tax reliefs that the Government calls “the most generous in the world” for the video games, high-end TV and animation industries.

The relief will allow eligible companies engaged in the production of qualifying video games, high-end TV productions and animated productions to claim an additional deduction in computing their taxable profits and where that additional deduction results in a loss, to surrender those losses for a payable tax credit.  Both the additional deduction and the payable credit are calculated on the basis of UK core expenditure up to a maximum of 80% of the total core expenditure by the qualifying company.  The additional deduction is 100% of qualifying core expenditure and the payable tax credit is 25% of losses surrendered.

In all cases productions must be certified by the Department for Culture, Media & Sport as culturally British in order to eligible for relief.

The draft legislation is open to technical consultation until 6 February 2013.  For a link to the draft legislation and supporting documentation, click here.

Technology

European Parliament approves unitary patent regime.

In three separate voting sessions, MEPs have approved the “EU patent package”, which includes a unitary patent, language regime and unified patent court.  Essentially, MEPs approved two legislative proposals on the terms of unitary patent protection and the language regime.  It also approved an international agreement on the creation of the unitary patent court system.  The new regime will provide automatic unitary patent protection in all 25 participating member states.

The international agreement will enter into force on 1 January 2014 or after 13 contracting states ratify it, provided that the UK, France and Germany are among them.  The other two legislative proposals would apply from 1 January 2014, or from the date when the international agreement enters into force, whichever is the latest. Spain and Italy are currently outside the new regime, but could decide to join in at any time.

The European Commission says that the new patent will be cheaper and more effective than current systems in protecting the inventions of individuals and firms.  According to the Commission, this will cut cuts costs for EU firms and boost their competitiveness: a EU patent may cost just €4,725 compared to an average of €36,000 as currently needed. 

The European Patent Office has welcomed the adoption of the unitary patent, hailing it as an “historic achievement”.  The UK Intellectual Property Office also welcomed the move, calling it “an important step in delivering a unified patent system within Europe and placing UK businesses on a more equal footing with global competitors”.  To read the European Parliament press release in full, click here.  To read the EPO’s response, click here.  To read the IPO’s response, click here.

Intellectual Property Office consults on changes to Patents Act 1977.

The Intellectual Property Office is considering introducing changes to the Patents Act 1977 to facilitate more work sharing between the UK and other patent offices to help speed up international patent processing, to introduce an easier way for patent owners to provide public notice of their patent rights, and to correct and modernise a small number of aspects of the patents legislation to provide clarity and legal certainty to users of the patent system.  The decision to consider changes comes as a result of the Hargreaves Review of Intellectual Property and Growth.

The proposals are likely to affect anyone who applies for or owns patents and anyone who has an interest in other people’s patents and patent applications.  The IPO is keen to get responses from as wide as possible a cross section of its actual and potential customers, and any other affected parties, before it decides how to proceed.  For a link to the consultation documentation, click here.

Data Protection

Joint Select Committee on the draft Communications Data Bill publishes report saying the Bill must be “significantly amended” to deliver only necessary data that law enforcement needs.

The Joint Select Committee on the draft Communications Bill has concluded that the draft Bill must be significantly narrowed.  However, the Committee’s Report also recognises that more needs to be done to provide law enforcement and other agencies access to data that they cannot currently obtain, and it makes a range of proposals to enable the Home Office to present a better Bill to Parliament.

Essentially, the Joint Committee says that the Home Secretary should not have sweeping powers to order the retention of any kind of communications data by any communications service provider as currently provided in Clause 1 of the draft Bill.  If this is narrowed and safeguards are put in place to ensure that any new powers are not abused, a new Bill could be introduced that would work, the Report concludes.  The Bill should work to allow the security services, law enforcement agencies and a few other public authorities access to the communications data they need to protect and serve UK citizens “without trampling on the privacy of those citizens”, the Report says.

The Committee does not accept the Government’s assertions that keeping Clause 1 as wide as possible is necessary to “future-proof” the Bill.  Rather, it suggests a narrower power to allow the Secretary of State to order the retention of very specific types of communications data, for which a current need has been proven, along with the inclusion of a “super-affirmative” procedure, which would allow Parliament to amend the Home Secretary’s powers if and when the need arose.  In addition the number of public authorities able to access communications data should be narrowed and the definitions of communications data should be tightened.

The Report also sets out a framework for a better Bill.  It says that there must be much better consultation with industry, technical experts, civil liberties groups, public authorities and law enforcement bodies before a new Bill is introduced.

Commenting on the Report, the Information Commissioner, Christopher Graham said: “My concern is around the adequacy of the proposed safeguards that the ICO would be responsible for regulating.  Ensuring the security of retained personal information and its destruction after 12 months would require increased powers and resources, and as it stands today we’ve not been given clear advice on where that will come from.  I am pleased to see today’s report reflecting those concerns.  The problems are not insurmountable, and we stand ready to work with the Government to discuss how the safeguards can be revised, and how the necessary powers and resources can be provided to make sure that those safeguards are effective in practice”.  For a link to the Report, click here.  To read the Information Commissioner’s statement in full, click here.

Information Commissioner’s Office launches consultation on new draft code to help organisations handle subject access requests.

The new code of practice is designed to assist organisations in handling subject access requests, but also to “support the public in taking control of their personal information”, the ICO says.

During the last financial year, the ICO says that it handled nearly 6000 complaints from individuals unhappy that organisations were not complying with the law by allowing them to view their file.  The final version of the code will “aim to clear up any confusion, by clearly and simply explaining an organisation’s legal responsibilities and individuals’ rights under the Act”, the ICO says.

Announcing the start of the ICO’s consultation, David Smith, Deputy Commissioner and Director of Data Protection, noted that subject access requests “can also benefit organisations by highlighting inaccuracies in their records and giving them the opportunity to update the information they keep about us”.

The draft code has been published on the ICO website.  The ICO is keen to hear from individuals and organisations that have experience with handling or making subject access requests to see where they believe the draft code could be improved.  The closing date for this consultation is 21 February 2013.  For a link to the draft code and consultation documentation, click here.

Publishing

Media Standards Trust responds to Lord Justice Leveson’s report saying it supports proposals for voluntary system of independent regulation backed up by “limited” legislation.

The MST notes that Lord Justice Leveson found that the previous system of self-regulation, led by the PCC, “was simultaneously a panacea, a misnomer and a contradiction in terms”.  The MST welcomed the judge’s finding that, as the MST also found in its 2009 Report, A More Accountable Press, that the PCC was a complaints body, not a regulator. 

As for reform, the MST agrees with Leveson LJ that the proposal put forward by Lord Black and Lord Hunt for a new system of self-regulation “does not come close to delivering, in the words of the submission [of the industry] itself ‘regulation that is itself genuinely free and independent both of the industry it regulates and political control’”.

The MST says that any new proposal put forward by the press must, as Leveson LJ said, work for the public and have the rights and interests of the public at its heart.

The MST also agrees with Leveson LJ that the best solution is a regulatory body, “established and organised by the industry, which would provide genuinely independent and effective regulation of its members and would be durable” and that, given that this is the seventh opportunity the press have been given to devise such as system in the last 70 years, the “process cannot be left entirely without independent recognition”.  Moreover, the MST agrees that, in order to provide the press with legal incentives to participate in a new system of regulation, such a system must be effective enough to warrant recognition by the courts.  

The MST agrees also with Leveson LJ’s proposal for an independent auditing process to ensure that any new system that is established is “independent and effective”.  As such, the press would develop their own system, which would then be verified by an independent body.  Once verified, the members of that body would be able to take advantage of certain protections within the law.

The MST also supports the idea of “limited” legislation backing up the new self-regulatory body as proposed by Leveson LJ.  The MST also says that it agrees with Leveson LJ’s assessment that “Despite what will be said about these recommendations by those who oppose them, this is not, and cannot be characterised as, statutory regulation of the press”.

Without legislation it is very difficult to see how news organisations within a system of self-regulation could benefit from greater costs protection in the courts.  It is also hard to envisage how any independent external body could be given the authority, the credibility, or the sustainability to audit a press self-regulator.  Nor, without legislation, would the press gain explicit legal protection from interference by the government”, the MST says.  Further, it notes that “The law would not compel anyone to participate in self-regulation.  It would not give statutory authority to the oversight of content, only process.  It would not, and should not, create any opportunity for the government to exert any control on the press.  We believe that the use of legislation for the purposes Leveson proposes is justified and necessary.

The MST is, however, concerned at Leveson LJ’s proposal that the independent auditor should be Ofcom, as the Chairman of Ofcom is appointed by the Secretary of State, and the Chief Executive is approved by the Secretary of State.  Further, Ofcom regulates content as well as process.  The MST says it would rather a separate body, with clear distance from the Government, be given this authority.

As for balancing a free press with individual rights and liberties, the MST believes that Leveson LJ’s recommendations would balance these successfully.  To read the MST’s response in full, click here.

Government announces about-turn on media CFAs.

A Ministerial Statement has confirmed that, for media claims, the recovery of success fees and ATE premiums from a publisher will not now be abolished in April 2013.  The decision flies in the face of the ECHR ruling in MGN v UK (that the requirement to pay success fees was a violation of Article 10) and Jackson LJ’s finding that the current system was “the most bizarre and expensive system that it is possible to devise”. 

The decision means that media defendants must continue to pay the excessive costs demanded by claimant lawyers for the foreseeable future.  To read the Ministerial Statement, click here.

European Commission accepts legally binding commitments from four international book publishers and Apple for sale of e-books.

The European Commission has adopted a decision that renders legally binding commitments offered by Apple and four international publishers: Simon & Schuster, HarperCollins, Hachette Livre and Verlagsgruppe Georg von Holtzbrinck.  The Commission had concerns that these companies may have contrived to limit retail price competition for e-books in the European Economic Area in breach of EU antitrust rules.  To address these concerns, the companies offered in particular to terminate on-going agency agreements and to exclude certain clauses in their agency agreements during the next five years.  The publishers have also offered to give retailers freedom to discount e-books, subject to certain conditions, during a two-year period.  The Commission says that it is now satisfied that the final commitments remedy the identified competition concerns it had identified.

The Commission opened proceedings in December 2011 against these companies as well as Penguin in the UK.  The Commission had doubts concerning the joint switch by these companies from a wholesale model, where the retail price of e-books is determined by the retailer, to agency contracts that contained the same key terms for retail prices, including an unusual retail price Most Favoured Nation clause, maximum retail price grids, and the same 30% commission payable to Apple.  The Commission was concerned that the switch to these agency contracts may have been coordinated between the publishers and Apple as part of a common strategy aimed at raising retail prices for e-books or at preventing the introduction of lower retail prices for e-books on a global scale.

Four publishers and Apple offered commitments to address these concerns.  In particular, the publishers agreed to terminate all existing agency agreements that include retail price restrictions and a retail price MFN.  The publishers further committed not to enter into new agreements that include price MFN clauses for five years.  They have also committed to a two-year “cooling-off period” during which retailers will be free to offer retail price discounts for e-books up to an amount equal to the commission the retailer receives from the publisher over a one-year period.

Apple has committed to terminate its agency agreements with these four publishers as well as with Penguin.  Apple has further committed not to enter into or enforce any retail price MFN clauses it may have in any new or existing agency agreements for a period of five years.

The Commission says that it has concluded that these commitments are suitable to restore and maintain retail price competition for the sale of e-books in the EEA.

The Commission’s decision does not involve Penguin who chose not to offer commitments to the Commission.  The Commission says that it is, however, currently engaged in constructive discussions with Penguin on commitments.  To read the Commission’s press release in full, click here.

Joint Select Committee on Human Rights publishes Report on Defamation Bill calling for greater protection for freedom of expression.

One of the Bill’s main provisions is the introduction of a statutory defence for responsible publication in the public interest, which would put in place a checklist of factors for consideration by the court.  The Committee found the proposed defence to be “inflexible” and that it would “both fail to rebalance the law of defamation in favour of freedom of speech and perpetuate existing problems”.  The Committee has recommended that the checklist be abandoned in favour of a “clear, unambiguous defence of public interest, which gives proper consideration to editorial judgment”.  The Committee has suggested an alternative formulation, which would use a test of “reasonable belief that the publication was in the public interest”.

Further, the Committee is concerned that another proposed defence for website operators, available where they do not author content and either facilitate contact with the author or remove material where they cannot establish contact, could “create a chilling effect for material online”.  It has therefore recommended that the threshold for such material be raised from defamatory to unlawful to protect against that threat.  

The Committee has also called for the Government to provide reassurance that those publishing defamatory material will be properly protected by the proposed clause establishing a single publication rule.  If it cannot, the Committee wants the Government to explore an alternative defence of “non-culpable republication”.

Further, it has recommended that the Bill be amended to ensure that corporate claimants can sue only where there is substantial financial loss incurred, an issue not addressed in the Bill at present.

Finally, the Committee has welcomed the Government’s work with the Civil Justice Council to consider the legal aid regime in the area, but stressed the need for a solution to ensure that all persons, regardless of financial means, can access justice in defamation proceedings.  For a link to the Report, click here.

Sport

Advocate General Jääskinen says Court of Justice of European Union should dismiss FIFA and UEFA’s appeals concerning television broadcasting of Football World Cup and the European Championships.

Essentially, the Advocate General said that if those competitions are considered by Member States to be events of major importance for their society they may, in order to ensure broad public access, require that they be broadcast on free-to-air television.

The Television without Frontiers Directive (89/552/EEC) (as amended) allows Member States to prohibit the exclusive broadcasting of events which they deem to be of major importance for society, where such exclusive broadcasting would deprive a substantial proportion of the public of the possibility of following those events on free-to-air television.

Both Belgium and the United Kingdom drew up a list of events considered to be of major importance for their society.  Belgium’s list included all of the matches of the World Cup finals, while the United Kingdom’s list included all of the matches of the World Cup finals and of the EURO finals.  Those lists were sent to the European Commission, which decided that they were compatible with EU law.

FIFA and UEFA brought actions against those decisions before the General Court, contesting the finding that all of those matches constituted events of major importance.  The General Court dismissed the claims and FIFA and UEFA appealed to the CJEU.

Advocate General Niilo Jääskinen has opined that, in accordance with the Directive, Member States alone can draw up the lists to ensure that events of major importance for society are broadcast on free television.  Member States also have a certain degree of discretion, he said, in choosing the measures they consider best to achieve, in the context of their distinctive national, cultural, and social characteristics, the objective of the Directive, i.e. ensuring freedom to provide television broadcasting services.  Consequently, the Advocate General said, the check that the Commission is entitled to carry out on the lists is limited to ascertaining whether there is “a manifest error of assessment”.

The Commission is required, the Advocate General said, to check the procedure involved in drawing up the national lists to ensure that the events chosen are actually of major importance for society.  Moreover, the Commission must ensure that the national lists do not derogate from the fundamental freedoms provided for in the Directive.  Likewise, the Commission must check the lists in the light of general principles, such as non-discrimination on grounds of nationality.  The Commission’s review must be “objective in nature and limited in scope”, he said.

Nevertheless, the Commission must not limit itself to an automatic verification of the lists.  On the contrary, it is required, the Advocate General said, to observe “the principle of good administration”, which includes the duty to examine “carefully and impartially” all relevant aspects of each individual case.  However, such an examination does not mean the Commission cannot produce identically worded statements in its decisions, provided that the criteria used in each case is the same.

As for FIFA and UEFA’s argument that limiting the exclusive broadcasting of their sporting events infringed their right to property, the Advocate General said that since such right to property was not defined either in national law or in EU law, its field of application depended for its very existence on the provisions setting out its limits in the Directive.  Therefore, the limitation did not constitute an obstacle to the right to property within the meaning of the Charter of Fundamental Rights.

Finally, the Advocate General said that the CJEU should confirm that, although the World Cup and the EURO are mentioned in the Directive as examples of events of major importance for society, it does not mean that the entirety of those sporting events may in all cases be included on Member States’ national lists irrespective of the interest which they provoke in the Member State concerned.  On the other hand, the reference to the World Cup and the EURO in the Directive implies that, where a Member State includes those tournaments on its national list, it does not need to include in its notification to the Commission specific grounds concerning their nature as an “event of major importance for society”.

Therefore, the Advocate General said that the General Court had correctly exercised its power of judicial review and the CJEU should dismiss the appeals in their entirety.  (Advocate General’s Opinion in Cases C-201/11 P, C-204/11 P and C-205/11 P UEFA and FIFA v Commissionto access the Opinion in full, go to the curia search form, type in the case numbers and follow the link).

Corporate

European Commission says it plans to modernise European company law and corporate governance.

The Commission has adopted an Action Plan outlining future initiatives in the areas of company law and corporate governance.

The Commission says that its analysis and consultations over the last two years indicate that further improvements can be made to European company law and corporate governance to ensure that companies are competitive and sustainable. 

Key elements of the Action Plan include:

1. Increasing the level of transparency between companies and their shareholders in order to improve corporate governance.  This will include in particular:

  • increasing companies’ transparency as regards their board diversity and risk management policies;
  • improving corporate governance reporting;
  • better identification of shareholders by issuers; and
  • strengthening transparency rules for institutional investors on their voting and engagement policies.

2. Initiatives aimed at encouraging and facilitating long-term shareholder engagement, such as:

  • more transparency on remuneration policies and individual remuneration of directors, as well as a shareholders’ right to vote on remuneration policy and the remuneration report;
  • better shareholders’ oversight on related party transactions, i.e. dealings between the company and its directors or controlling shareholders;
  • creating appropriate operational rules for proxy advisors (i.e. firms providing services to shareholders, notably voting advice), especially as regards transparency and conflicts of interests;
  • clarification of the “acting in concert” concept to make shareholder cooperation on corporate governance issues easier; and
  • investigating whether employee share ownership can be encouraged.

3. Initiatives in the field of company law to support European businesses and encourage their growth and competitiveness, such as:

  • further investigation on a possible initiative on the cross-border transfer of seats for companies;
  • facilitating cross-border mergers;
  • clear EU rules for cross-border divisions;
  • follow-up of the European Private Company statute proposal with a view to enhancing cross-border opportunities for SMEs; and
  • targeted measures on groups of companies, i.e. recognition of the concept of the interest of the group and more transparency regarding the group structure.

In addition, the Action Plan foresees merging all major company law Directives into a single instrument.  This would make EU company law more accessible and comprehensible and reduce the risk of future inconsistencies, the Commission says.  To read the Commission’s press release in full, click here.

Gambling & Betting

Culture, Media and Sport Joint Select Committee invites written submissions on draft Bill reforming remote gambling regulations in Great Britain.

As reported last week, the Department for Culture, Media and Sport recently published The Gambling (Licensing & Advertising) Bill amending the Gambling Act 2005 so that remote gambling by consumers in Britain is regulated at the point of consumption.  In response to a request from the Minister for Sport and Tourism, the Culture, Media and Sport Committee will now scrutinise the draft Bill.

As part of its examination of the Bill, the Committee has invited short written submissions on the provisions in the Bill from the public.  The deadline for submissions is 11 January 2013.

The Committee says that it expects to take oral evidence on the draft Bill in January 2013 and publish a report shortly afterwards.  For information on how to submit comments, click here.

ASA finds industry term “Best Odds Guaranteed used in William Hill ads misleadingly implied that odds could not be bettered by other bookmakers.

Two ads on sports.williamhill.com and a TV ad made claims about the odds available during various sporting events.  One web ad stated “BEST PRICES ON THE BEST HORSES BET NOW” and “ROYAL ASCOT SATURDAY 23RD JUNE 2012”.  Another web ad stated “EURO 2012 BEST PRICES ON THE BEST TEAMS”.  The TV ad, which focused specifically on text betting, stated “Best Odds Guaranteed on all UK & Irish Horse racing”.

William Hill said that the term “Best Odds Guaranteed” had been used for some time in the industry and that the phrase “terms apply” was an accepted form of wording to direct viewers to further information about offers.  It said it did not believe it should be held responsible if consumers did not read and understand the information provided.  Clearcast said it did not regard “Best Odds Guaranteed” as a superior best price claim, but as a guarantee to give the best odds and price to customers. 

The ASA noted that no qualifying text was included to explain the basis of the claims and considered that consumers, particularly those without knowledge of the industry, would understand them to mean that William Hill offered prices that would not be bettered by their competitors.  The ASA said that it had not seen comparative information regarding the prices offered by William Hill and its competitors and therefore concluded that the claims had not been substantiated and were likely to mislead.

The ASA noted that the ads provided numbers to which viewers could send text messages to begin betting and considered that they could not therefore have been expected to have read the information about “Best Odds Guaranteed” on the website, particularly as the ad did not direct them to the website.  Furthermore, the ASA considered that the offer when fully explained would contradict rather than clarify their understanding of the claim.  Because the intended meaning of the claims was unlikely to be understood by most viewers, the ASA concluded that they were likely to mislead.  Accordingly, the ads breached CAP Code rules 3.1 (misleading advertising), 3.7 (Substantiation) 3.38 (Comparisons) and 3.9 (Substantiation).  To read ASA Adjudication on William Hill Organisation Ltd (12 December 2012), click here.

Advertising

ASA finds re-targeted ad for hotel accommodation misleading on account of discrepancies between actual room rates and out-of-date booking information contained in the cache that fed the re-targeted ad.

An internet display ad for Booking.com stated “Portland Heights Hotel & Leisure Centre £102 save £235 for 2 nights”.  The ad included an image of a resort with the words “Last rooms” below it, and a click through link labelled “BOOK NOW”.

The complainant challenged whether rooms were available at £102.  Booking.com said the ad contained a “real-time” rate based on the check-in/check-out data stored in the complainant’s cookie.  They said while the vast majority of their re-targeted ads displayed accurate rates, occasionally there would be differences between the data stored in the cache that fed those ads and the data stored on their booking system because the amount of data that needed to be updated regularly made it impossible to maintain 100% accuracy.  However, Booking.com considered that consumers would appreciate that a price might become unavailable due to fluctuations in the room rate and limited availability.

The ASA considered that, irrespective of whether consumers understood that an ad had been re-targeted to them, they would expect the price shown to be available at the time they saw the ad.  Because the complainant had not been able to obtain the offer as advertised the ad was misleading.  Further, Booking.com’s system did not keep track of historic price and availability data and they could not therefore identify when the advertised price became unavailable.  As such the ad was also misleading because Booking.com could not substantiate that the advertised price was available at the time the complainant saw the ad.  The ad breached CAP Code rules 3.1 and 3.3 (Misleading advertising), 3.7 (Substantiation) and 3.29 (Availability).  To read ASA Adjudication on Booking.com BV (12 December 2012) in full, click here.

ASA finds American Apparel ad inappropriately sexualised a model who appeared to be a child.

A press ad for American Apparel which appeared on the back cover of Vice magazine pictured a girl sitting on an office chair wearing a jumper, knickers and knee-length socks.  She was posed with her legs up on the chair and her knickers were visible.

Two complainants, who believed the ad appeared to sexualise a child, objected that the ad was offensive and irresponsible.  American Apparel said that Vice magazine was written for adults, that the model wore clothes which were available for sale in its stores and online, and that she was over 18 years of age.

The ASA considered that the model appeared to be young and potentially under the age of 16.  Whilst it acknowledged the image did not contain any explicit nudity, the ASA considered that the amateur style of the photo, the posing of the model with her legs up on an office style chair with her knickers showing and the unsmiling expression on the model’s face meant the photo would be interpreted as having sexual undertones and a voyeuristic quality. The ASA concluded the ad inappropriately sexualised a model who appeared to be a child in a magazine that was untargeted and freely available and was therefore irresponsible.  Accordingly, the ad breached CAP Code rules 1.3 (Social responsibility) and 4.1 (Harm and offence).  To read ASA Adjudication on American Apparel (UK) Ltd (12 December 2012) in full, click here.

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