Faced with continuing complaints over broadband ad claims, the Committee of Advertising Practice, sister body to the Advertising Standards Authority that writes the non broadcast ad codes, and its broadcasting sidekick BCAP have published a new Helpnote. Hannah Willson reports.
Who: Committee for Advertising Practice and Broadcast Committee of Advertising Practice
When: 1 April 2012
Law stated as at: 1 November 2011
New guidance has been issued regarding advertising claims in the telecommunications market. Ads with 'unlimited' claims and broadband speed claims have been the subject of numerous consumer complaints to the Advertising Standards Authority (ASA), and as a result public consultations were undertaken and two new help notes have been issued by Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP).
The guidance pulls together points to bear in mind from the CAP and BCAP Codes of non-broadcast and broadcast advertising, the Consumer Protection from Unfair Trading Regulations 2008 and The Business Protection from Misleading Marketing Regulations 2008.
It is an important distinction to make that the unlimited claims refer to access and not performance. Providing there is unlimited access to the service, provider imposed limitations that are only moderate changes to the performance are permitted.
The guidance provides that an 'unlimited' claim will be acceptable when a legitimate user incurs no additional charge or suspension of service as a consequence of exceeding a usage threshold set out in a fair usage policy (FUP), traffic management policy or the like.
The context in which an unlimited claim appears is of key importance. If the ad states 'unlimited broadband' then the entire service should be unlimited. However a statement such as 'unlimited web browsing' would only require that element to be unlimited, although it is important to note that in such a claim the average consumer is likely to consider this to include unlimited use of streaming services such as You Tube, BBC iPlayer and legal peer to peer file sharing sites.
A legitimate user is a customer who uses the service in accordance with the terms and conditions of use; but this does not mean that a usage allowance can be included in the terms and conditions to cause the consumer to be an 'illegitimate user' for usage above this threshold.
The guidance on speed claims only relates to fixed line services, however it is noted that mobile services that make speed claims should also conform to the 'spirit' of the guidance.
A reasonable proportion of customers, defined as at least 10% of the relevant customer base, must be able to obtain the speed stated in the advertising; a familiar threshold in the CAP Code for other promotions, and applies to the name of the service as well (or wherever the claim may appear in marketing). CAP has reiterated that the key to a compliant ad lies in providing the consumer with sufficient information to ensure they are not misled before making a transactional decision.
Appropriate qualifying information
- 'Up to' – this must be used where some customers' maximum speeds fall below the stated maximum; however this is not required where an average speed is stated.
- 'Significant factors' – where some customer may receive a significantly lower speed than advertised, the factors that may affect this should be clearly stated, e.g. traffic management policies.
- 'Further information' – if a significant factor prevents a significant proportion of the advertiser's customer base receiving a maximum speed, to the extent that they are unable to carry out activities they would have expected from the advertised speed, then further information should be included.
Where there are qualifying statements they should be prominent, appear in the body copy of non-broadcast materials (and equivalent for broadcast ads) and must be easily understood by the consumer (i.e. no technical language).
As well as guidance on numerical speed claims, CAP has also stated that non-numerical claims, such as 'superfast' will be considered on the same criteria on a case-by-case basis. Although not the primary focus of the guidance, upload speeds also come within the remit where relevant.
It is important to remember that all claims should be substantiated in accordance with Section 5 of the CAP Code, and such substantiation should be collected and available before any advertising claim is made, similarly the rules relating to comparative advertising must also be adhered to.
Why this matters:
The help notes, found on the CAP Copy Advice website, focus on what the average consumer would expect, and to ensure that advertising claims do not mislead beyond this expectation. However it is yet to be seen whether the average consumer expects to have their service slowed down through FUP or traffic management policies and if this new guidance will truly address the consumer complaints.
There has been a mixed reaction to the guidance and concern that it does not go far enough. Chairman of CAP, James Best, considers the guidance as setting 'an appropriately high bar for advertisers' making these claims but an Ofcom spokesperson has said they 'were disappointed that it appears not to be possible to establish a single, clear and consistent 'typical speed range''.
Executive director of consumer campaigning charity Which?, Richard Lloyd, considers the guidance as a 'green light to mislead consumers.' He goes on to say that '[t]he rules say that providers don’t have to state what range of speeds most of their customers experience. That means advertising campaigns can now be based on the experience of a privileged few. If just one in 10 customers get access to the top speeds advertised, that’s within the guidelines.'
There is clearly divided opinion on the extent to which the guidelines will be effective but with the deadline for compliance not being until 1 April 2012 (although any new campaigns should follow the guidelines) we will have to wait and see what the actual effect will be.