It Could Be You: UK Advertising Regulator Censures Misleading "Copycat" Lottery Sites
Seller Beware: Consumer Protection Insights for Industry,
The UK Advertising Standards Authority (ASA) is continuing its campaign to clean up so-called "copycat" websites. This week it reprimanded Take That Ltd, the operator of three websites, for implying that its sites were, or would, via links contained on its sites, direct consumers to, the official UK National Lottery and EuroMillions websites.
The websites in question (www.national-lottery.com, www.lottery.co.uk, www.sports-gamble.co.uk and www.euro-millions.com) promoted the UK National Lottery and EuroMillions, the latter, a transnational lottery with nine participating countries. A competitor-complainant, WagerPod Ltd, challenged whether Take That misleadingly implied that (i) the website www.national-lottery.com was the official UK National Lottery site, which is in fact operated by Camelot UK Lotteries Limited; and (ii) hyperlinks for "EuroMillions Results" on www.lottery.co.uk and www.sports-gamble.co.uk would link consumers to the official EuroMillions site, when in fact they were being linked to www.euro-millions.com, another site operated by Take That.
In response, Take That argued that its websites were not "copycat", but rather provided news, information and results from various lotteries, including the UK National Lottery and EuroMillions. Take That argued that it did not and could not sell lottery tickets. It asserted that consumers would not be mislead or suffer detriment by being directed to a website, rather than the official lottery sites, for the lottery results, since such results represented objective information and therefore it was immaterial to the average consumer which site provided that information. Take That also argued that www.national-lottery.com would not mislead consumers as it did not mirror the official site (www.national-lottery.co.uk), did not contain any Camelot logos and also contained references to a number of non-Camelot lotteries. It also said that there was nothing on the sites to suggest that it was an official lottery provider and included a disclaimer to that effect in the footer of each page of its sites.
The ASA disagreed. The ASA found it persuasive that Take That's site www.national-lottery.com had a very similar URL to the official UK National Lottery site www.national-lottery.co.uk and, even though the site contained a disclaimer, that was not sufficient to contradict the initial impression that the site was the official site. The ASA accepted that consumers could not buy tickets on the site nor make any other financial transactions, but noted that Take That itself received payment through "pay per click" for all consumers directed to the official site. The ASA said that if consumers had been aware that the site was a commercially-interested affiliate site, they may not have chosen to click on the links within it. The ASA also found the advertisements for "EuroMillion Results" on www.lottery.co.uk and www.sports-gamble.co.uk misleading as they did not make it clear that consumers would be linked to commercially-interested affiliates rather than the official lottery sites. The ASA ordered Take That not to imply that its site was the official UK National Lottery site and not to imply that links on its sites would direct consumers to official lottery sites, if that is not the case.
The ASA has taken a firm stance on copycat websites in recent months, which has seen a number of websites emerge offering consumers "official" services such as passport renewal, driving licences and tax returns, for a premium. These websites contain features similar to the government websites, which provide the official channels for these services and often appear high in search engine rankings, making it difficult for consumers immediately to identify the correct site to use. Although the Take That case is arguably more innocuous than these "copycat" government sites where real financial detriment could occur, the decision highlights the ASA's no-nonsense approach. The ASA continues to work with the National Trading Standards Board (NTSB), which is tasked with handling complex consumer enforcement cases (a role it took over from the Office of Fair Trading, which closed in April 2014), to tackle the issue which remains one of its "hot topics" for 2015.
© Arnold & Porter Kaye Scholer LLP 2015 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.