Smaller print directly beneath stated "LE16 0, LE16 7, LE16 8, LE16 9, LE8 0, NN14 1, NN14 2, NN6 6, NN6 7 01/01/14 to 31/12/14 - According to Rightmove reports 16/01/2015".
The same claim appeared inside the leaflet alongside three pie charts featuring Rightmove branding entitled: "MOST NEW INSTRUCTIONS IN OUR AREA THROUGHOUT 2014", "MOST AVAILABLE STOCK LEVEL IN OUR AREA THROUGHOUT 2014" and "MOST SALES AGREED IN OUR AREA THROUGHOUT 2014".
Small print at the bottom of the page stated: "Data is derived purely from rightmove.co.uk's internal statistics and advertisers on 26/01/15, may be subject to specific geography or search criteria and is provided 'as is' for general interest only. Rightmove makes no warranty as to the data's suitability for any purpose and accepts no liability for any action or inaction taken as a consequence of its use".
However, rival agency Cooper Estate Agents Harborough Ltd complained to the ASA.
Cooper claimed the data was insufficiently robust to support a market share claim, and that the difference in geographical areas covered by each estate agent hindered like-for-like comparison. It suggested some claims may be misleading and possibly not able to be substantiated.
Henderson Connellan told the ASA it had compiled information made available by Rightmove, emphasising that Rightmove had authorised the use of the data for external marketing purposes, and saying the ad had been reviewed and approved by Rightmove's data compliance team.
Referring to the coverage of the Rightmove data upon which their claim was based, Henderson Connellan said it believed that all residential agents in Market Harborough registered the properties they were selling on the Rightmove website, and so was confident that all properties sold in the area appeared on Rightmove at some point in the sales process.
Even if a property was sold subject to contract before it was uploaded to the website, it would still appear automatically, as a result of the agent's software for uploading information to Rightmove, albeit with the description SSTC.
Whilst Henderson Connellan acknowledged that different estate agents operated across, or focused their efforts in, slightly different geographical areas, it told the ASA it had defined the specific postcode areas in which it claimed to have the most sales agreed on Rightmove throughout 2014.
It also commented that in any case all estate agents in Market Harborough would be likely to offer coverage across the set of postcode areas listed.
In respect of the term "sales agreed", Henderson Connellan considered that that would be correctly understood by consumers as being distinct from “completed sales”.
The ASA decided that Henderson Connellan had based their market-leading claim only on data supplied to them by Rightmove.
The authority’s conclusion was:
“We considered that there were limitations on the applicability of such data and that marketers should take care to avoid making claims that implied a broader body of evidence. For example, because not all agents operating within a given area would list all of their properties on online property portals, data derived only from those portals could not support a general market-share claim. We also noted that not all sales agreed on properties were eventually finalised as completed sales, and therefore considered that evidence relating to the former could not reasonably be used to support a claim relating to ‘sales’ more broadly.
“However, the text "#1 MOST SALES AGREED THROUGHOUT 2014 ON RIGHTMOVE.CO.UK IN OUR AREA*" identified, clearly and prominently as part of the claim itself, that the data was based on information about sales agreed taken from Rightmove data, and the date and broad area parameters applied, with the specific postcode areas listed in easily accessible and legible print on the front page.
“Further detail was included in the form of the pie charts inside the leaflet that showed the number of new instructions, sales agreed and available stock compared to other agents. We considered that consumers reading the ad were provided with sufficient context from which to draw an accurate understanding of the claim that was being made. We also noted that the full data supplied by Henderson Connellan supported the claim.
“We noted Cooper Estate Agents Harborough Ltd's concern that the difference in geographical areas covered by each estate agent hindered like-for-like comparison.
“We agreed that some comparative claims relevant to the property sales and lettings industry might mislead on that basis. However, because Henderson Connellan's claim specified that the data related to "their" area only, with clear and prominent details given as to which postcode areas that included, we were satisfied that it gave an accurante impression as to the extent of the areas featuring in the comparison.
“Because the claim "#1 MOST SALES AGREED THROUGHOUT 2014 ON RIGHTMOVE.CO.UK IN OUR AREA*" specified the details of the comparison being made, and because the evidence supported that comparison, we concluded that it was was unlikely to mislead.”