Although the Committee of Advertising Practice (CAP) Code permits comparative advertising, marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. This rule concerns identifiable companies and products (though ads need not necessarily name companies to identify them – see below).
Marketers that make comparisons should be mindful of the relevant rules, especially Rule 3.35, which states that comparisons must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. Claims that go beyond a robust and objective comparison of services may be considered denigratory. In 2018 a complaint about an ad for a taxi company which stated “Uber- unsafe for passengers, unsafe for road users. Why trust them both with your data?” above a photo depicting an arm reaching out of the window of a car and grabbing a purse from a pedestrian’s bag was upheld because The Advertising Standards Authority (ASA) considered that the image, as well as the text in the Facebook post, was denigratory by creating the impression that Uber drivers were untrustworthy and took part in illegal behaviour (Licensed Taxi Drivers Association Ltd t/a LTDA, 03 October 2018).
Although the Code allows them to state an opinion about the qualities or desirability of their products, marketers should be mindful that expressions of opinion that allude to a competitor’s dishonesty or sharp practices or criticises a competitors product are likely to be unacceptable. The ASA upheld a complaint about a car buying company that compared their service to that of a competitor and included a testimonial which included the statement “My warning to anyone reading this is be careful who you deal with and in my experience never deal with Varooma, they should not be allowed to trade”. The ASA ruled that it implied the competitor was not honest or professional and went beyond objective critical comment (Car Cash Point Ltd, 20 December 2017).
It is possible that claims that are true can still be considered denigratory, depending on the context in which they appear. In 2014, the ASA upheld a complaint about an ad that was presented as a conversation between a customer and Virgin Media, and stated “Let’s give Virgin Media a call and see what happens”… “So this super-duper fast broadband I’ve got is always going to stay that way, right?” The response stated “Well that depends. We do have a traffic management policy.” And then went on to comment on further features of the product in the same way. Although the claims about the product were correct, the ASA concluded that the ad exaggerated the effect of Virgin Media’s traffic management policy and was presented in a manner that went beyond a robust and objective comparison of the services offered by Sky and Virgin Media and denigrated Virgin Media’s brand (British Sky Broadcasting Ltd t/a Sky, 08 January 2014).
Marketers should be careful even when they are not naming their competitor: in markets where competitors are few, it might be clear to readers who or what the comparison is with, irrespective of whether they are explicitly identified. In 2012, the ASA ruled that a magazine ad for a safety jacket for horse riding was denigratory even though it did not name the competitor, because an article that featured on page 6 of the magazine made it possible to identify the competitor (Point-2 Equine Ltd, 28 March 2012).
In addition to the Code’s requirements, marketers who publish advertisements that falsely denigrate the reputation of people, businesses or their products could risk liability under the law of defamation or malicious falsehood. If you are concerned about the legality of a proposed advertisement, we recommend you seek legal advice.
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA.
CAP’s Advice Online entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
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