THOU SHALL NOT LIE – EVEN FOR LOVE

Earlier this year eHarmony Ltd (an online dating website) had one of its advertisements banned by the ASA in the United Kingdom for being untruthful – about love. The advertisement was a billboard on a London Underground platform and read: “Step aside, fate. It’s time science had a go at love.”

It was complained to the ASA that the advertisement is misleading as there was no scientific evidence to support the efficacy of mathematical dating applications or websites – whether it was possible to find the love of your life based on science. The advertisement in issue seemed to claim that one could.

eHarmony argued that their advertisement did not make any claims other than suggesting that their matching system was scientific, and that consumers would interpret the advertisement to mean that their scientific method would suit them better, but would not believe that it was a guarantee at finding love. eHarmony submitted evidence of the workings of their algorithm. The algorithm was based on data collected from more than 50 000 married couples in 23 different countries. They claimed that the algorithm was based on certain scientific theories relating to relationships between persons. eHarmony had obtained a patent for its algorithm and submitted further proof of two published studies which reported higher levels of marital satisfaction for couples who met through eHarmony.

The ASA accepted that consumers would perceive the advertisement to refer to a dating website and that they would not understand the advertisement to imply a guarantee of finding ever lasting love. However, consumers would understand the phrase “scientifically proven matching system” to mean that scientific studies had demonstrated that eHarmony’s website offered users a significantly greater chance at fining lasting love compared to what could be achieved if they did not use the service. The ASA found the evidence submitted by eHarmony to be insufficient proof that the algorithm used for their website provided a greater chance of finding lasting love. While eHarmony’s algorithm had been shown to result in a lower percentage of marital break-ups, it was higher compared to those who had met through other online means (e.g. e-mail, chatrooms, etc.).

The ASA rejected one of the studies submitted by eHarmony on the basis that the participants in the study were offered an incentive to participate and that the data obtained was accordingly not sufficiently random and objective.

In all, the ASA held that the studies submitted did not provide objective insight into the likelihood of eHarmony’s website/algorithm finding users lasting love compared to others who did not use the service. The result was that eHarmony could not substantiate the claim. The claim “scientifically proven matching system” was held to be misleading and eHarmony was ordered to withdraw the advertisement in its current form.

Although the case was decided in the United Kingdom, the lessons to be learnt from it are equally true for businesses in South Africa. The Code of Advertising Practice of the South African ASA contains similar clauses dealing with substantiation of claims and misleading advertising in general. The merits of the decision aside, it illustrates the value of reviewing advertisements beforehand, and the need to be very careful of the content of the advertisement and how it may be perceived by the reasonable average consumer.

Quite often businesses include phrases or exaggerated statements in their advertisements, being of the view that consumer would see them as mere puffery. Puffery in its true form has always been accepted by regulatory authorities in South Africa. The reason for this is that consumers would not be prejudiced if they realised that the business is merely bragging. However, the line between puffery and misleading statements has become very thin of late and it is quite often found that a statement would not be perceived as puffery, but rather as a claim, which in many cases is misleading (e.g. best hairdresser in Cape Town).

Claims can be made either expressly or they can be implied. Businesses should be very careful in reviewing their advertising before it is published to determine whether it contains any claims and, if so, whether the claims are truthful and can be substantiated with objective (independent) research. It is not enough for the business itself to believe that the claim or statement is true. It must be capable of being substantiated objectively, and the business must have such substantiation available when called upon to provide. The Code of Advertising Practice of the South African ASA contains detailed provisions dealing with substantiation.  Apart from ASA’s code, there is also a host of labelling regulations pertaining to goods imported into or sold in South Africa that contain provisions dealing with misleading advertising.

It seems obvious, but it is certainly worth restating: avoid misleading claims, be truthful and obtain independent objective legal advice in cases of doubt.

by Wensel Britz | Senior Associate – Cape Town

WENSEL BRITZ

Senior Associate
Trade Mark Attorney

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