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A website for The Official Big Top 40, www.bigtop40.com, a music singles chart, seen on 5 November 2018 featured a black and white logo towards the top of the page, which included the text “THE OFFICIAL BIG TOP 40” and the Vodafone logo. To the right was bold, black text which stated “THE UK’S BIGGEST CHART SHOW”. Further to the right, pink text stated “The Official Vodafone Big Top 40”. The webpage was amended in January 2019 to delete the reference to Vodafone but retain the claim “The Official”.
The Official UK Charts Company Ltd (OCC), who contended that the advertiser was not the official chart provider as recognised by the British music industry, challenged whether the claim “The Official Big Top 40” was misleading and could be substantiated.
Global Media Entertainment Ltd t/a Global said there were a number of players in the UK popular music chart market, and there was commercial competition between those players as to which music chart was favoured by listeners. They said they had used the term “the official Big Top 40” and “the official Vodafone Big Top 40” on a large scale since late 2017. They said the commercial chart had been produced for 34 years and from 2009 to 2017 had been titled "The Big Top 40”.
Global said they were the UK’s biggest chart show by consumption and had for many years been bigger by consumption than the OCC’s equivalent chart, and could thus legitimately claim to be the most authoritative chart. They said that artists recognised the Big Top 40’s legitimacy and authenticity and had taken part in the show to celebrate their own chart successes.
Global said their chart’s methodology was unique and proprietary to them. They said the list of tracks in The Official Big Top 40 was rarely ever the same as the OCC’s chart or other charts. Global said their current data sources included major streaming platforms, downloads and (unlike OCC’s chart) radio airplay. They said the Big Top 40 reflected the popularity of songs across different media and platforms, with data weighted to achieve a chart that reflected public consumption. In addition, OCC’s chart was broadcast on BBC Radio One on Friday’s from 4pm, whereas Global’s chart was broadcast (with different presenters) on Capital and Heart on Sundays from 4pm, so including sales data from new tracks released on a Friday. Global contended that its chart was well known to consumers as being a specific chart product and that accordingly, the words ‘the official’ in ‘The Official Big Top 40’ would be understood by the average consumer in that context as signifying that this was the authentic version of that particular (and well-known) chart.
Global said there was no UK music chart which derived its status from or was authorised, endorsed or approved by the UK Government, the Crown or under statute and therefore there was no “official” source of pop music charts. They said it was therefore entirely legitimate for two or more organisations to vouch for the authenticity and status of their own charts, for which they claimed credit and accepted responsibility.
Global said the term “official” had no single fixed or universal meaning and was always context dependent for the meaning it conveyed. They said it was open to any entity to use the term to vouch for the authenticity and status of its products and services, as Global had done. They provided a list of organisations which they contended used the word “official” to vouch for the authenticity and status of their products or services as being their own creation. There could be several “official” charts.
Global said consumers would only see the logo if they sought it out by navigating to the page in question.
They said there was no display in the ad of a trust mark, quality mark or equivalent and no claim that Global, the ad or the Big Top 40 had been approved endorsed or authorised by any identifiable public or other body. They said they did not claim to be a chart of record sales and that there were many and diverse component parts to the business of making, selling and enjoying music which included the writers of music and lyrics, artists, music publishers, record labels, broadcasters, platforms, retailers, festivals, live events and the audience. They said that no single organisation represented or could claim to speak authoritatively for all the different parts of that industry.
Global said that no consumers had complained to the ASA that their use of “official” was misleading.
The ASA noted that official had several potential interpretations, including recognition or support by a government, or endorsement as having particular characteristics (e.g. using agreed industry measurement standards, or being the biggest). It could also, among other things, denote originating from the advertiser or sponsor, as opposed to being pirated. Global did not contend that “the official” was a meaningless claim, not to be taken seriously; rather Global contended that it would be understood as meaning the version of Global’s specific chart product that had been authorised as being the authentic version of that chart by the creators of it.
We considered that consumers viewing the ad were likely to be interested in popular chart music and would be likely to arrive at the site via a search engine, or via social media. A search for ‘official top 40’ returned results for both the complainant’s and advertiser’s charts. The target audiences for BBC Radio 1, Capital and Heart were relatively young, but the age of actual listeners to the radio stations ranged much more widely. Consumers were likely to be familiar with popular music charts to varying degrees, and an artist appearing in or topping a chart would be of interest to consumers who listened to popular music. We also considered that the ranking of an artist in such a chart was significant within the music industry. We noted, for example, that the song that was recorded as being ‘Christmas number one’ was a significant annual event routinely reported in the media, though we also noted that both the advertiser’s and the complainant’s charts awarded their own version of the ‘Christmas number one’ based on their own methodologies. Consumers who were interested in seeking information on chart positions were more likely to be interested in seeking out the most authoritative chart.
We considered that a substantial proportion of the average consumer class, being reasonably well informed, reasonably observant and circumspect, was likely to understand that The Official Big Top 40 was the only official chart, being endorsed by a body representing the majority of the music industry. We did not consider that the average consumer would attach no meaning to the words “the official”. Nor would the average consumer read “The Official” as denoting merely that the chart was the advertiser’s own chart authorised and published by the advertiser. It did not say “Our” or “Global’s Official Big Top 40”; rather, the average consumer would take from the ad that there was one chart which was the official chart, and that it was the one stated in the ad. We considered that, had the ad been sufficiently clear that official was being used to mean the version of Global’s specific chart product that has been authorised by them as being authentic, it was unlikely consumers would have been misled.
We considered whether addition of Vodafone in the original ad made it likely that consumers would read the claim as being that the chart was Vodafone’s official chart, but thought it more likely that consumers would read the claim to be that the chart was The Official Big Top 40, sponsored by Vodafone. This was consistent with the fact that when the advertiser’s relationship with Vodafone changed subsequent to the complaint, the ad was amended to remove any reference to a sponsor but the claim “the Official” remained.
We understood that the complainant, the OCC, was jointly owned and operated by two trade bodies, the British Phonographic Industry (including the UK’s major record companies) and the Entertainment Retailers Association (including major high street and online retailers). Its UK music chart had been broadcast for some decades, invariably (although not always) featuring the top 40, enjoyed wide support from a variety of bodies in the British music industry and was compiled based on sales and other music industry data. While OCC’s use of official was not based on their having being granted the term by a body that represented the majority of the music industry, they had used the term since 1969, and it had formed part of their company name since 2001. We understood that Global’s The Official Big Top 40 offered a different top 40 based on streaming data and was broadcast on commercial radio stations, most recently across a number of radio stations owned by Global. They said that their chart had a larger weekly audience than the complainant’s chart. Their chart had also not been granted official status by being endorsed by a body representing the majority of the music industry. It had also been broadcast for many years, under different brand names, and also received recognition within parts of the industry, often by major artists who had appeared on broadcasts or celebrated appearing in the chart on social media, but had only used “The Official” as part of its branding since October 2017. The fact that another top 40 chart, that of OCC, had also been described as “The Official” for decades did not in our view render Global’s usage of the claim any less likely to mislead, including through confusion.
We considered that music charts were significant for consumers who were interested in popular chart music and enjoyed a large audience reach in the case of both the complainant and advertiser’s charts. We considered that consumers’ listening and purchasing decisions were likely to be influenced by what appeared in a chart, and if a chart was official, consumers were more likely to trust it (for example as endorsed by a third party as reputable, representative, reliable), tune into it, listen to it as opposed to other radio stations, and make purchasing decisions (including downloads and streaming) on the basis of it. In addition, we noted that alongside the individual tracks in the Global chart were links to Apple Music, where consumers could sign up to the Apple Music streaming service, or alternatively follow a link to purchase a download of the track on iTunes. We considered that the claim that the chart was The Official one was likely to affect the transactional decisions of at least a significant minority of consumers (sharing the characteristics of the average consumer) in relation to music purchases, including of signing up to streaming services, through the link to Apple Music, or more generally subsequently making purchases of such music via other media.
In any event, claims to third-party approval, endorsement or authorisation of a trader or its products by a public or private body could be deemed to mislead regardless of an express finding as to whether the average consumer’s purchasing decisions had been affected. We noted Global’s point that no third-party body was identified in the ad, but nevertheless in our view the advertiser’s use of The Official was likely to denote such endorsement, which had not been substantiated.
We made no findings as to the merits of Global’s chart as opposed to any other chart (including that of OCC). However, because the ad gave the impression that the advertiser’s chart was the official UK top 40 chart, which had been awarded that status by being endorsed by a body representing the majority of the music industry, and because that was not the case, we considered that the claim “The Official Big Top 40” was misleading, or was likely to mislead consumers, and concluded it was in breach of the Code.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), and 3.50 (Endorsements).
The ad must not appear again in its current form. We told Global Media & Entertainment Ltd not to mislead by suggesting that their music chart was the official chart, or otherwise use “official” without explaining (expressly or by implication) what that meant. For example, if the term official was intended to mean the authentic version of Global’s specific chart, that should be made clear. That might be achieved, for example, by stating “Global’s official Big Top 40”.
3.1 3.36 3.41
30 Leicester Square
Number of complaints: 1
Complaint Ref: A18-472895 Global Media Entertainment Ltd
Tel: 020 7492 2222
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