Who: CityFibre Ltd, The Advertising Standards Authority (ASA)
Where: United Kingdom
When: 15 April 2019
Law stated as at: 29 April 2019
What happened:
Digital infrastructure provider CityFibre has lost a judicial review against the ASA after the advertising regulator held that the unqualified use of the term ‘fibre’ in adverts for part-fibre broadband was unlikely to mislead consumers.
The original ASA decision was made in 2017 following a review of the way the term ‘fibre’ was used by broadband providers. CityFibre had argued that the advertising practices of its rivals were misleading as, according to CityFibre, the term ‘fibre’ should only be used for full-fibre cables rather than part-fibre cables, which used copper in their connections. The ASA decided that the word was simply a buzzword that did not change a consumer’s purchasing behaviour, so the word was unlikely to mislead.
In the judicial review, CityFibre argued that:
- ‘part-fibre’ connections which used copper to connect consumers’ homes should not be labelled as ‘fibre’; and
- the well-informed consumer would assume that these connections, labelled as ‘fibre’, were ‘full-fibre’ cables capable of delivering speed greater than 1GB per second.
The ASA reconfirmed its position that consumers would not be misled by the unqualified use of ‘fibre’.
Mr Justice Murray, the judge presiding over the review, accepted that full-fibre infrastructure is “technically superior to part-fibre infrastructure in a number of important respects“. Nevertheless, the judge highlighted that the general level of knowledge about a product must be judged by reference to the group that is being advertised to. The judge concluded that the ASA’s original decision was not irrational.
The ASA welcomed the Court’s decision, noting that the process followed “to test if the average consumer is being misled by the use of the term “fibre” to describe part-fibre services is the one [the ASA] have used to protect UK consumers from misleading advertising for many years“.
Why this matters:
In its analysis, CityFibre applied the wrong test to determine who the theoretical ‘average consumer’ is. Consumer protection law sees the ‘average consumer’ as reasonably well-informed, however the judge opined that the level of knowledge assumed by CityFibre was too high for the average Joe.
The ASA took the correct approach by questioning the level of knowledge of a theoretical average member of the consumer group which the advertising was targeted to.
The judgment served as a reminder that that the ASA’s role is to protect consumers and in protecting the average consumer on the street, we must look at what this person does know about fibre cables, instead of what they should know.
