888.com, the online gaming business, sent a marketing communication advert to a consumer in which it said that the consumer could use a new account in the casino with a “free” £10 already credited into it. The advert also said that there was nothing else the consumer needed to do to take advantage of the offer.
However, 888.com operated a minimum account withdrawal of £30 so that, when the consumer opened the account and wanted to withdraw the £10.70 in winning that had been accumulated, it was not permitted. The consumer complained to the Advertising Standards Authority (ASA) that the advert was misleading as it did not state that there was a minimum withdrawal amount.
888.com argued that anyone who opened an account had to accept their standards terms and conditions, which included the £30 minimum withdrawal.
The ASA ruled that the advert breached the CAP Code (the code of practice that seeks to ensure that adverts are not misleading) because it did not state that, to open an account, a consumer had to agree to 888.com’s terms and conditions; the ASA ruled that the advert was misleading in what it did say and also in terms of what was omitted from the advert, of which the consumer was entitled to be informed.
The ASA has said that an advert is misleading if it deceives a consumer and causes the consumer to take a transactional decision that they would not otherwise have made (i.e. opening an account on 888.com). Although the CAP Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space.