EALA Country Report

Ireland – October 2005

1.
Topic: “Crazy Frog” Polyphonic Ringtones for Mobile Phones
Who: Office of the Director of Consumer Affairs
When: June 2005
Where: Ireland

What happened: Following a number of complaints to her Office, the Director of Consumer Affairs investigated the sale of mobile phone ringtones. Consumers had complained about practices such as overcharging, the “STOP” message not ceasing subscriptions and text messages arriving in the middle of the night.
ODCA joined a Ringtone club called “Jamster” on the Internet which promised six ringtones and six logos for €4 per week. They remained in the club for four weeks. When they unsubscribed by sending a “STOP” message, upon checking their bill, they noticed that they had been overcharged by 100%.
Jamster alleged that by subscribing, ODCA had joined a club which was not limited to the initial package of only six ringtones and six logos. Eventually, Jamster sent an e-mail acknowledging that the ODCA and other customers had been overcharged and agreed to issue refunds.

Comment: ODCA noted that many Jamster customers, especially children are unaware when buying a ringtone that they are often agreeing to a long-term subscription costing a minimum of €4 per week. While Jamster do state in their terms and conditions that it is a subscription service with an age restriction of 16 years, this information is not very clear when subscribing via mobile phone, which is how the majority of youngsters join. Much of this advertising is clearly targeted at children who do not understand the terms and conditions of an adult world, making them particularly vulnerable customers. The ODCA noted that parental supervision is required, and it is vital that parents understand how children are using their mobile phones and discuss with their children the costs involved. The ODCA also noted that service providers such as O2, Meteor of Vodafone also have a duty to ensure that any service provided by their network is not ripping consumers off.

2.
Topic: Inappropriate Poster advertising Coty – Rimmel ‘Sun Shimmer’
Who: Advertising Standards Authority of Ireland;
When: August 2005
Where: Ireland

What happened: A bus shelter advertisement for Rimmel ‘Sun Shimmer’ was the subject of complaints. Complainants objected to the use of the term ‘sex on legs’ and considered it inappropriate for an advertisement that would be seen by people of all ages, especially children. Several complainants considered that the advertisement portrayed women as sex objects.
The advertisers stated that the advertisement which appeared in Ireland was part of a global campaign and was produced by Global Rimmel – they did not have a choice in the executions that they run in Ireland. The message in the execution was not meant to offend people or undermine the equality of women. The headline ‘sex on legs’ was used to help demonstrate the product and was not meant in a sexual way. They apologised if they caused any unnecessary offence and stated that the advertisement was no longer running on outdoor sites.

Comment: The complaint was upheld. The Code of Advertising Standards requires an advertisement should contain nothing likely to cause grave or widespread offence. Advertisements should respect the principle of equality of men and women and should avoid sex stereotyping. Agencies should take account of public sensitivities in the preparation and publication of advertisements and avoid the exploitation of sexuality. Advertisements should not use offensive or provocative copy or images merely to attract attention.
ASAI expressed surprise at the agency’s statement that the choice of executions for Ireland was outside their control stating that advertisers should take local standards into account. The Committee considered the phrase ‘sex on legs’ likely to give rise to offence upholding all complaints made.

Offensive Poster Advertising in Dublin
Rimmel
3.
Topic: Misleading Poster for Film
Who: Advertising Standards Authority of Ireland;
When: May 2005
Where: Ireland

What happened: Advertising for a movie – “The Amityville Horror Movie” – was the subject of a complaint. The movie (a remake) featured a family (the Lutzes) who bought a house in which another family (the DeFoes) had been murdered, their son having been found guilty of their murders. In the movie, the house is haunted and after 28 days the family move out. The advertising claimed that the movie was ‘based on a true story’. The complainant stated that since 1979 the story had been proven to the false. Both the DeFoe family and the Lutz family admitted that virtually everything they had said about the haunting had been made up.
The advertisers claimed that to the best of their knowledge, “The Amityville Horror” was based upon supernatural events where were reported to have happened in Amityville in the mid-1970s which were widely covered in the news media. They said that they described the film as ‘based upon’ to indicate that while the inspiration for the film came from these events, they had no way of definitively knowing the detail of what actually took place. They did not believe therefore that the advertising was misleading or inaccurate.

Comment: The Code of Advertising Standards requires that advertisers should not exploit the credulity, inexperience or lack of knowledge of consumers and should not mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise. The overall theme of the film was concerned with the haunting of the house and various supernatural events. These latter events were disputed and the advertisers themselves acknowledged their inability to definitively say what took place. In the circumstance the Committee felt the statement “based on a true story” was an exaggeration and considered that the advertising had contravened the Code, upholding the complaints made.

Offensive Poster Advertising in Dublin

amityville
4.
Topic: Misleading Eircom Promotion
Who: Advertising Standards Authority of Ireland;
When: August 2005
Where: Ireland

What happened: An Eircom promotion offering a special offer on the home page of its Website was the subject of an objection. On clicking the link, consumers were forwarded to a Webpage titled “eircom first home phone line” which gave details of the free broadband connection which was part of the offer. The complainant had contacted the eircom sales team on 28th June and the availability of the offer had been confirmed to him. When he rang again on 29th June to confirm the terms of the offer, he was informed that the broadband part of the offer was finished. The offer was still advertised on the eircom website at that stage. He considered that the offer was misleading. The advertisers stated that the consumer may have been misinformed by one of their agents that the offer was still available. They said that the online offer should have been removed at midnight on June 29th. They apologised if any miscommunication occurred that led to this customer’s dissatisfaction.

Comment: The Code of Advertising Standards requires that an advertisement should not mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise. The Complaints Committee considered that the advertising had clearly indicated a closing date for availability of the offer. The Committee considered that consumers would have expected to be able to place an order up to and including 30th June. They did not consider that the confusion caused by eircom was in keeping with the spirit of the Code of Advertising Standards and upheld the complaint made.

5.
Topic: Launch of National Directory Database (NDD)
Who: Data Protection Commissioner & Communications Regulation (ComReg)
When: July 2005
Where: Ireland

What happened: The Commission for Communications Regulation (ComReg) and Data Protection Commissioner (DPC) have now launched a “cold call” opt out register for consumers.
Cold calling, for many years, was the preferred method of generating new business for practically all companies and salespeople whereby direct marketers called random numbers from telephone directories in an attempt to sell new or existing products. These unsolicited calls were viewed by unsuspecting recipients as both annoying and intrusive.
However the launch of the National Directory Database (NDD) as a national marketing opt-out database has increased the protection of telephone subscribers. Now, a phone call for the purposes of direct marketing may not be made to an individual’s phone number if the individual has his/her preference not to receive marketing calls noted in the National Directory Database, allowing consumers to restrict cold calling if they wish. All subscribers will be notified shortly by their phone line provider of the procedures to be followed should they wish to prevent cold calling to their telephone numbers

Comment: The launch of this initiative, which should help reduce the number of unwanted marketing phone calls and faxes being received is to be welcomed. It should also be an aid to the marketing sector, helping ensure more effective and targeted marketing. The efforts of the Data Data Protection Commissioner & Communications Regulation (ComReg) should lead to a significant reduction in the amount of cold calling.

6.
Topic: Complaint against “The Sun” newspaper
Who: Broadcasting Commission of Ireland
When: March 2005
Where: Ireland

What happened: The complainant questioned the legitimacy of an advertisement for the Irish Sun newspaper shown on national television. The advertisement indicated that if one purchased the edition of the paper on Monday 14 March 2005, one would receive a special supplement for Cheltenham, plus a free €3 bet each day of the festival with Boyle Sports. However, it transpired that in order to obtain the free bets, one had to purchase the paper on each day of the festival. The complainant claimed that this was not what he understood from the advert and he had listened to it several times. He believed this advert to be misleading and referred his complaint to the BCI.

In response, “The Sun” stated that it was not their intention to mislead anyone about the mechanics of this promotion, believing it was clear that the Cheltenham guide would be given away in the paper on the Monday and the free bets were a separate concern given away each day of the festival. This year the Cheltenham Festival ran from Tuesday 15th to Friday 18th March and one would assume that the bet would be in the paper for each of these days.

Comment: The Broadcasting Complaints Commission upheld the complaint made. On hearing the advertisement, a listener could easily perceive that the offer of a €3 euro bet applied to each day of the festival i.e. by buying the paper on Monday one would get a €3 euro bet for each race day together with the 24 page guide to Cheltenham. The advertisement actually stated ‘for every day of the festival, get a free bet worth €3…’. There was no distinction made between the 24 page guide available with the Monday edition of the paper and the €3 bet promotion. However, by buying the paper on the Monday the reader only got one €3 bet for that day. This advertisement was misleading, and the complaint upheld.

7.
Topic: Lucozade TV advertisement
Who: Broadcasting Complaints Commission
When: July 2005
Where: Ireland

What happened: An advert for “Lucozade” showed zombies who were listless and bereft of energy “coming to life” after taking the fizzy drink and was the subject of a complaint. Some of the scenes in the advert were particularly graphic, including zombies’ arms dangling and their eyes popping out. The main cause of concern was that some imagery might upset impressionable young viewers. It was alleged that the advertisement was very distasteful and unpleasant. The advertisers’ aim was to develop a highly energetic and original advertisement, and they chose to feature ‘zombie’ characters as a metaphor for those who are clearly ‘un-energetic’ and ‘lifeless’ who could feel revitalised from drinking Lucozade. The cast, make-up and dress were carefully directed to ensure that they would not appear offensive and the advertiser was careful to ensure that the advert was produced with a very definite humorous dimension.

Comment: BCC was cognisant of the possible affect the advertisement may have on children. It was ruled that the advertisement should not be broadcast during prime time viewing (before 9.00pm) as it was felt to be extremely unsuitable for children. Further during the recent bombings in London, broadcast of the advert was suspended completely as it was felt that the imagery in the advertisement might be linked to the bombings. The BCC took the view that children may not be able to discern the nature of the humour of the advert, and therefore, could easily be frightened by it. If one did not recognise that it was supposed to be humorous, the tone could be menacing and scary. The BCC upheld the complaint and ruled that the advert should not be broadcast during the schedule when children may be watching i.e. prior to 9 p.m. The Children’s Code, introduced in January 2005 was neither invoked nor referenced. Further, there have been no reported decisions by the BCC relating to the Children’s Code since its introduction.

8.
Topic: Prosecution for Illegal Spam Text Messages
Who: Data Protection Commissioner
When: September 2005
Where: Ireland

What happened: Fours-A-Fortune, a Dublin based company, used automated calling machines to block-call certain mobile phone numbers. However, each call was disconnected after two rings leaving a “missed call” message on the phone. Individuals who rang the number accessed a voice message which stated that they had won a €50 cash credit to play a “wheel of fortune” type competition. To participate, they had to ring a premium rate telephone number.
The net legal issue in the case was whether the “missed call” message constituted a “text message” for the purposes of the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003. Regulation 13 provides that it is an offence to send an unsolicited communication for the purpose of direct marketing by means of an “electronic mail”, unless he or she consents to the receipt of such a communication. “Electronic mail” is defined as including an SMS message sent over a public communications network, which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.” These Regulations have been implemented into Irish law by Statutory Instrument 535 of 2003 [European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003] which took effect on November 6th 2003.
However, as Fours-A-Fortune admitted liability there was no judicial decision on this point. In any case, Fours-A-Fortune was fined a total of €1500 for five breaches of the Regulations and ordered to pay costs of €1,000.

Comment: This was the first prosecution in this country for an offence under the Regulations. The Data Protection Commissioner has stated that, since the investigation of the case commenced, complaints about similar promotions have fallen. The Commissioner is satisfied that this case has sent out a positive signal to the marketing community and to those that are targets of its promotions. The Commissioner believes that this is, in part, due to the marketing sector taking proper notice of their legal obligations and acting in a lawful manner.
It is interesting to note that Vodafone the biggest mobile phone operator in the country stringently guards its customers’ personal details and does not share these details with third parties for their marketing purposes. It also hosts a dedicated Spam reporting line where customers can forward suspected Spam texts free of charge. Measures such as these can combat the problem of unsolicited text messages being received by unwitting individuals.