Text message ads were misleading and unsolicited, says watchdog

Express Mobiles breached advertising rules on truthfulness more than once in the short advert and also broke its rules on the use of customer databases.

Express had sent customers of the Orange mobile phone network a text message which said "ORANGE CUSTOMER: YOU HAVE BEEN SELECTED FOR A COMPLETELY FREE PHONE. 1ST COME 1ST SERVED. CALL NOW... ". It had paid other companies for the phone numbers to which it sent the message.

Callers to the phone number listed discovered that they only qualified for the advertised free phone if they signed a new mobile phone contract. They also discovered that the advert was not from Orange but from Express.

Recipients complained that the advert was misleading when it said that the phone was free, but the company claimed that because it offered a cheque rebate system to cover line rental costs, the phone was effectively free.

The ASA found that the 'free' claim was misleading. "The ASA considered that the text message did not make clear that consumers would have to take out a new 18-month contract to take up the offer of the free phone," said its ruling. "We considered that that information was necessary to ensure recipients had a full understanding of the promotion and we concluded that the promotional text message was misleading."

The advert was also censured by the ASA for not making it clear who the sender of the message was, following recipient complaints about its anonymity.

The ASA made its own complaints about the advertiser's use of customer databases, unprompted by recipient concerns.

Express said that it had bought the list of names and numbers to whom the message was sent from a number of companies selling such data. It claimed that it had confirmed, as far as it was able, that the people owning the numbers had opted in to receive marketing.

The ASA rejected that explanation. "We considered that, in the absence of any information to the contrary, the text message was unsolicited because recipients did not seem to have an active relationship with Express Mobiles, nor were they customers of Express Mobiles but of Orange," said the ruling. "We therefore concluded that the text message breached the Code by being unsolicited and by not identifying the sender or including an opt-out option."

The ASA has a section of its Code of Conduct dedicated to the use of customer databases and the issue of consent from message recipients.

"We told Express Mobiles to include significant conditions in future message offers and to obtain explicit consent from recipients before sending text messages," said the ruling. "We reminded them that they should identify themselves and provide a clear and simple means for recipients to opt-out of receiving future messages."