The second - which was not upheld - referred to a London Underground poster which claimed: 'OnTheMarket gets thousands of new properties every month, 24 hours or more before Rightmove or Zoopla'.
It was challenged whether the claim that properties could be seen exclusively on OnTheMarket before being seen on competing sites was misleading and could be substantiated.
OnTheMarket responded to the complaints by providing the ASA with a list of agents who have committed to launching some of their new properties exclusively on its portal.
It also explained the process by which a property would be advertised and how the 'new' and 'exclusive' banners are used.
It also supplied information that showed the number of agencies that had uploaded a new property exclusively with OnTheMarket and the overall number of new properties that had been advertised with OnTheMarket exclusively for at least 24 hours.
The portal acknowledged an example provided by a complainant whereby a 'new and exclusive' banner continued to appear on a listing despite it appearing on a competing portal. It said that some margins for error still existed in this regard while agents supply and upload information to the website themselves.
The ASA upheld the first complaint against the TV ad. It considered viewers were unlikely to interpret the claims made to mean that 'estate agents who were advertising their new properties exclusively with OnTheMarket for the first 24 hours were advertising all their new properties exclusively with OnTheMarket for the first 24 hours'.
It said evidence held by OnTheMarket shows that while several thousand new properties are advertised on the site each month, only a small percentage are marketed with OnTheMarket exclusively for the first 24 hours.
The watchdog therefore concluded that the claim was misleading and ruled that the ad must not appear again in its current form.
It concluded that the complaint referring to the Underground poster was not misleading as OnTheMarket's evidence shows that several thousand new properties are advertised exclusively with them each month for 24 hours or more before appearing on other portals.
A spokesperson for OnTheMarket told Estate Agent Today: "We are disappointed that the recent complaint about a phrase within our long-running TV commercial has been upheld by the ASA."
"We had certainly never intended to mislead consumers but we respect the ruling that the phrase 'advertise their properties' could be interpreted to imply 'advertise (all) their properties'."
"More positively, we are very pleased that the ASA rejected a complaint about our factual claim on posters that OnTheMarket gets thousands of new properties every month, 24 hours or more before Rightmove or Zoopla."
As with other ASA rulings of this significance, we are reproducing the statement in full below:
A TV ad and a poster for OnTheMarket.com, a property search website:
a. The TV ad, seen on 3 May 2018, stated in the voice-over "... agents have moved to OnTheMarket.com from other sites and many are advertising their new properties exclusively with us first, 24 hours or more ahead of other portals. So to be first to see these properties search [website address]".
b. The poster, seen on the London Underground network on the same day, stated "OnTheMarket gets thousands of new properties every month, 24 hours or more before Rightmove or Zoopla".
The ASA received two complaints:
1. one in relation to ad (a); and
2. one in relation to ad (b).
The complainants challenged whether the claims that properties could be seen exclusively on OnTheMarket.com 24 hours or more before being seen on other websites or portals were misleading and could be substantiated.
1. & 2. Agents' Mutual Ltd t/a OnTheMarket.com (OnTheMarket) listed some of the estate agents who had committed to launching some or all of their newly, sole agency instructed properties by advertising them with OnTheMarket before advertising them on other portals.
They said estate agents supplied property details or uploaded them themselves and had the ability to hold back details of specific properties if they were already being advertised through another portal (as the property would then not be advertised exclusively with OnTheMarket first).
OnTheMarket said the volume of new properties being advertised with them before appearing on other portals varied by region, price, property type and whether a property was for sale or rent. They supplied a document that set out in more detail the process by which a property would be advertised on OnTheMarket and for determining which banners ("new", "new and exclusive", etc.), if any, would be used for a property.
They supplied spreadsheet information that showed the number of agencies and their branches that had uploaded a new property exclusively with OnTheMarket in any month and the overall number of new properties that had been advertised with OnTheMarket exclusively for at least 24 hours.
OnTheMarket said they conducted their own automated and manual checks to ensure agents were keeping to the terms of their agreement to advertise properties exclusively with them before advertising them elsewhere and included a website address in their ads to enable consumers to verify the exclusivity claim.
OnTheMarket said it would be the case that many estate agents also advertised their properties on their own websites. They believed consumers would interpret the "exclusive" claims, in the context of them being made for a property portal, to refer to exclusivity in relation to other property portals
OnTheMarket acknowledged an example provided by one of the complainants of a property where the "new and exclusive" banner continued to appear despite the property appearing on another portal. They said the "new and exclusive" banner was removed as soon as their monitoring identified the situation.
They said that, while they took considerable steps to avoid such situations occurring, some margin for errors existed where estate agents supplied or uploaded information themselves. OnTheMarket said they were continuing to look at how they could tighten up their processes to avoid any such instances.
Regarding ad (a), Clearcast said OnTheMarket had supplied evidence of the firms and offices who had joined OnTheMarket who had committed to advertise their properties exclusively with OnTheMarket within 24 hours of them becoming available.
The ASA noted that the claim in ad (a) (the TV ad) stated "many [of the estate agents who have moved to OnTheMarket] are advertising their new properties exclusively with us first, 24 hours or more ahead of other portals".
We considered viewers were likely to interpret the claim to mean that, with perhaps the exception of a very small number of properties only, estate agents who were advertising their new properties exclusively with OnTheMarket for the first 24 hours were advertising all their new properties exclusively with OnTheMarket for the first 24 hours.
We considered that was a significant claim that would encourage consumers to visit OnTheMarket before other property portals.
While the evidence held by OnTheMarket showed that several thousand new properties were advertised with them each month, a small percentage only were advertised exclusively with OnTheMarket for the first 24 hours. We therefore concluded that the claim was misleading.
On that point ad (a) breached BCAP Code rules 3.1 (Misleading advertising) and 3.9 (Substantiation).
2. Not upheld
We considered readers were likely to interpret the claim to mean that thousands of new properties were advertised with OnTheMarket every month, 24 hours or more before they appeared on Rightmove or Zoopla.
We acknowledged that, depending on the search criteria used by a consumer and the number of properties being advertised first at the time of the search, the number of properties that would show as "new and exclusive" in the search result was likely to vary.
There might also be exceptional circumstances, which OnTheMarket was working to eliminate, when a property was shown with a "new and exclusive" banner despite it having since been advertised on another portal.
However, notwithstanding those situations, and the concerns expressed in point 1 above about the evidence in relation to the claim in ad (a), we nevertheless considered the evidence held by OnTheMarket showed several thousand new properties were advertised exclusively with them each month for 24 hours or more before appearing on other portals.
We therefore concluded that the claim in ad (b) was not misleading.
On that point we investigated ad (b) under CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation), but did not find it in breach.
Ad (a) must not appear again in the form complained of. We told OnTheMarket.com to ensure ads or claims did not suggest that all new properties listed by agents were advertised exclusively with OnTheMarket.com unless they held adequate evidence.
No further action was necessary in relation to ad (b).