Following a complaint by contractor website ContractorCalculator against Contractor UK, the latter has been found in breach of several key clauses of the Committee of Advertising Practice (CAP) Advertising Code, most notably by being unable to substantiate its website visitor traffic statistics. These visitor number claims held to be in breach of the CAP Code had been used to attract business to the Contractor UK site.
This landmark ruling is seen as setting a precedent that will level the playing field for all websites selling advertising, whilst at the same time making it clear to advertisers how important it is to confirm a website’s ABCe audited visitor figures before signing any advertising contract. Advertisers should protect themselves by asking to see the website’s ABCe certificate and ensuring claimed figures are independently audited.
The background and the issue
“Recent research by contractor body the Professional Contractors Group and Kingston University estimates the number of active contractors and freelancers in the UK at 1.4 million,” explains Dave Chaplin, CEO of ContractorCalculator, which brought the Contractor UK breach to the attention of the Advertising Standards Authority. “That means that the value of the contractor services sector is considerable, which is why there is a healthy market in advertisers targeting the contracting community.”
‘Contractor services’ includes a wide range of professional and business services that ensure contractors and freelance professionals are able to conduct their contracting business in an efficient and compliant manner. Competition between service providers is fierce and, due to the dispersed nature of contractors within the sector, there are a limited number of high quality advertising properties where service providers can market cost effectively to contractors.
“Once I knew from my own site visitor measurements that ContractorCalculator had tipped over into what for our advertisers is the magic 100,000 unique visitors, it was time to get independent verification,” continues Chaplin. “So we went for our first ABCe certificate, with a view to boosting the value of the ContractorCalculator advertising property and reassuring advertisers that they were getting what they were paying for.”
ABCe, formerly known as the Audit Bureau of Circulations Electronic, is an industry owned organisation, totally independent from any media owners, which measures website usage. It is an offshoot of the highly respected and long-established Audit Bureau of Circulations (ABC), which verifies the circulation of newspapers and magazines, and the viewer and listener numbers of broadcast media. ABC and ABCe’s shared objective is to ensure that advertising buyers have independent verification of the claims made by the owners of advertising properties.
ContractorCalculator’s first ABCe certificate confirmed the number of unique visitors to the site as 104,584 in March 2008, and Chaplin was delighted with the result; that was until Contractor UK started announcing its own visitor numbers, which had apparently grown dramatically in just days.
Chaplin explains: “The month before our first ABCe audit, Contractor UK was claiming on its site and its rate card to have 79,653 unique visitors, but immediately following the announcement of ContractorCalculator’s ABCe results, they started claiming 249,146 unique visitors for the same period,” says Chaplin. “I immediately thought that something was not right and that the timing of Contractor UK’s claims was suspicious.”
Chaplin had used an independent agency to ‘mystery shop’ Contractor UK before he announced ContractorCalculator’s ABCe figures for March 2008, and Contractor UK’s representative claimed to have only 55,000 unique visitors in March 2008. Confident that Contractor UK would have difficulty in substantiating these claims about its visitor statistics with its advertisers, Chaplin sought legal advice from one of the UK’s top ranked marketing and e-commerce lawyers and formally complained to the Advertising Standards Authority (ASA).
The case
Contractor UK made a series of claims in an email newsletter and follow-up leaflet which the ASA investigated:
- The Contractor UK (CUK) newsletter stated, "... Best month ever for CUK ... Contractor UK recorded its best month ever for traffic during the month of March 2008 ... resulting in 249,146 unique visitors coming to Contractor UK ...".
- The Contractor UK follow-up leaflet stated, "The UK's most visited IT Contractor Site - Online since 1998 ... Founded in 1999, Contractor UK remains the most visited IT Contractor site in the UK ... in March 2008, the Contractor UK network received 249,146 unique visitors coming to our site ... making us the most visited and viewed Contractor site in the UK.”
Chaplin’s legal advisers, City law firm Pillsbury Winthrop Shaw Pittman LLP, filed three separate complaints with the ASA, challenging whether Contractor UK could substantiate:
- That it had actually received 249,146 unique visitors to its website in March 2008;
- The claim to be "The UK's most visited IT Contractor Site" and;
- The claim, "Online since 1998".
According to Chaplin’s counsel, leading UK advertising, e-commerce and information technology expert Rafi Azim-Khan, given the importance of the case the ASA not only quickly confirmed they would be investigating the matter but also undertook a very thorough and lengthy examination of the issues and technological complexities surrounding website traffic measurement, all of which highlighted the need for much better clarity and standards to ensure online advertisers were not being misled.
Azim-Khan himself was convinced that the online advertising sector was clearly in need of new standards to promote such fairness and transparency in traffic claims and if key regulator the ASA were to rule against Contractor UK it would provide a landmark decision to show the need to adopt independent audit standards such as those provided by ABCe.
In Azim-Khan’s view this would significantly improve the position of online advertisers who should be able to expect accurate visitor numbers to be quoted and relied upon when making important buying decisions and choosing between sites, just as traditional media buyers expect accurate circulation numbers.
Contractor UK claimed in its defence that it had always used trusted and reliable methods to measure the traffic to its website, and that those methods showed there to be 249,346 visitors in March 2008. However, when put to proof, Contractor UK was unable to provide robust data that could substantiate these figures. Nevertheless, it pointed to these numbers to seek to substantiate its claim to be ‘The UK’s most visited IT Contractor Site’.
In response to the final charge, that Contractor UK had been ‘Online since 1998’, the ASA investigator was referred by Contractor UK to the Companies House website. This showed Contractor UK had been incorporated in June 1998 and a link to an earlier version of the site was provided, which has a copyright by-line of “Contractor UK Ltd. 1998’.
The ruling
Contractor UK was found by the ASA to have breached numerous Committee of Advertising Practice (CAP) Code rules, including the rules on truthfulness.
On all three complaints investigated, Contractor UK lost and the ASA upheld the complaints made against it.
On the issue of the dramatic and sudden almost fivefold claimed increase in unique visitor numbers, Contractor UK was unable to substantiate its claims that the total unique visitors in March 2008 was 249,346. The ASA considered that ‘the evidence Contractor UK had sent was not sufficiently robust to substantiate their unique visitor claims.’
On the issue of claiming to be the UK’s most visited site, because the ASA therefore had no evidence of visitor numbers, they ‘also considered that the claim “the UK’s most visited IT Contractor Site” had not been substantiated.’
On both these counts, Contractor UK fell foul of CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 19.1 (Other comparisons). ContractorCalculator’s two complaints were therefore upheld.
Contractor UK also came unstuck with its claim to have been “Online since 1998.” Third party ‘whois’ websites confirmed that neither www.contractoruk.co.uk nor www.contractoruk.com existed/had been registered in 1998; in fact both were only registered in 1999. The ASA therefore concluded that Contractor UK’s claim to have been “Online since 1998” was misleading and breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).
In its ruling, the ASA went on to tell Contractor UK that its adverts ‘must not appear again in their current form’. The ASA also instructed Contractor UK to remove its site visitor number claims, as well as the claims it has made to be "The UK's most visited IT Contractor Site" and "Online since 1998”.
Significantly, the ASA also advised Contractor UK to ‘seek advice from the CAP Copy Advice team before advertising in future’.
The impact
So what does this exercise mean to ContractorCalculator and Contractor UK? Well, according to Chaplin from ContractorCalculator, it is very positive for the contractor advertising market and strongly suggests independent verification is the way forward.
“The ASA’s ruling sends a clear message to advertising properties in all sectors that it is not acceptable for advertisers to be misled by site statistics that cannot be substantiated,” says Chaplin. “To avoid future charges of selling advertising off the back of inaccurate visitor stats, independent verification will become the norm, and this means regular, up-to-date ABCe certificates for all sites.”
Azim-Khan’s view is that this is a landmark ruling that should alert online media buyers to the spurious claims made by many online advertising properties. “Advertisers have to rely on the good faith of a site selling them advertising because they cannot verify the site statistics themselves,” he says.
“Or perhaps trust is a better word. Without independent verification, advertisers put their trust in the claims made by advertising properties when making comparisons and choosing who to do business with and, in this case, that trust was clearly misplaced, because the advertising property in question, Contractor UK, could not and did not substantiate any of the three claims.”
“There is a further interesting angle on this, namely what happens if you induce someone to enter into a contract with you and pay you money on the basis of false statements? Under English Law it could well amount to an actionable misrepresentation,” continues Azim-Khan. “In such a case an advertiser could seek to get a full refund of any money paid as a result of the misrepresentation.”
There are a number of clear lessons from this ruling for both online advertising buyers and online advertising property owners: if you are a buyer trust, it is clear, is not enough. Independent verification is now essential. If you are a site owner and you don’t wish to attract the attention of industry watchdog the ASA or find customers seeking refunds of advertising spend, don’t fabricate or stretch visitors claims. Get audited and get an ABCe certificate.
Issued 14/1/2009 by ContractorCalculator