Who: Advertising Standards Authority (“ASA“)
Where: UK
When: 27 July 2016
Law stated as at: 8 August 2016
What happened:
The ASA has upheld two complaints that Hutchinson 3G UK’s (trading as 3) advertising of its “all you can eat data” plan was misleading and could not be substantiated contrary to the CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading Advertising), 3.7 (Substantiation) and 3.9 (Qualification). The contested adverts appeared on the consumer and business pages of 3’s website during summer 2015 and did not refer to any fair use or other limitations on the amount of data available as part of the “all you can eat” offer. One complainant reported being cut off after 4 GB of data was used while tethering and another complained that 3 restricted the 4G data available to users during peak periods of demand. In a detailed ruling, 3 admitted that its “all you can eat” data plan did not include unlimited 4G data but argued that “all you can eat” was not synonymous with “unlimited” and that relevant customers would understand that fair usage limitations applied.
3 disclosed that in order to prioritise time critical requests (e.g. browsing and email) on its network during peak times, it used traffic management controls to restrict the network bandwidth that was available for peer to peer (P2P) file sharing which research had showed mostly facilitated illegal downloads. 3 argued that this did not affect its “all you can eat data” claim as customers would understand that the claim applied only to legitimate activities and that illegitimate activities would be restricted. Legitimate P2P file-sharing was not restricted provided that relevant customers notified 3 of their use so that their activity could be “whitelisted”. Accordingly, 3 argued that only a very small number of legitimate users were affected by the P2P file-sharing restriction and that the ASA should consider the complaint from their perspective, rather than the majority of 3’s customers which could continue to enjoy unlimited data during peak times. 3 asserted that legitimate users of P2P technology would have an “above average awareness” of traffic management controls deployed by mobile networks and where to find out about them. Therefore they would not be misled by an “all you can eat claim”.
3 also revealed that it placed restrictions on data used for tethering to between 4GB and 12GB depending on the plan taken by the customer. 3 defended this restriction on its “all you can eat data” claim by arguing that that most customers would have no expectation of unlimited tethering and that savvy customers would make further enquiries to identify relevant limitations. These limitations were made clear elsewhere in the advert or during the customer journey.
In finding against 3 and upholding the two complaints, the ASA ruled that both consumers and businesses taking the “all you can eat” plan would understand the claim to mean that data was unlimited for legitimate activities (including tethering and P2P file-sharing) and that any fair use policies would not contradict this claim. The ASA considered that customers using legitimate P2P technology would be adversely affected by 3’s traffic management controls and the impact on them could be significant, particularly before they notify 3 that their legitimate activity needs to be “whitelisted” or if they do not know that they need to do so. The ASA also considered that any cap on legitimate tethering which presents an immoderate restriction on that use would contradict the “all you can eat data” claim meaning the restriction must form part of the headline claim (and not be hidden elsewhere).
Accordingly, the ASA ruled that 3’s “all you can eat” advertisements did not comply with the CAP Code and must be removed in their current form.
Why this matters:
CAP Code rules 3.1 and 3.3 and the CAP and BCAP Help Note on the Use of “unlimited” claims in telecommunications advertising (“Help Note”) make clear that advertisements about “unlimited” services must not mislead a customer. The Help Note provides that claims that have a similar meaning to “unlimited” such as “all you can use” (which is comparable to “all you can eat”) may also be subject to the criteria set out in the Help Note. Cap Code rules 3.7 and 3.9 further provide that advertisers must be able to substantiate claims that consumers are likely to consider as objective; adverts must be clear about significant limitations and qualifications; and qualifications must not contradict the headline claim.
The Help Note clarifies the rules in providing that unlimited claims are only likely to be acceptable if “provider-imposed limitations that affect the speed or usage of the service are moderate only and are clearly explained”, something that the ASA found to be missing in 3’s unqualified claims.
The ASA ruling makes clear that if you have a healthy appetite for data, you can reasonably expect that “all you can eat” means what it says on the tin and that restrictions on legitimate activities won’t apply unless this is made clear. The ASA’s position on unlimited telecoms claims is well defined and the Help Note is available to telecommunications providers to support them to get their advertising right. It’s therefore unsurprising that the ASA has chosen to uphold complaints where the customer is misled because material information and limitations have been omitted. This ASA ruling reaffirms that, at a time where mobile data limits can be a key differentiator, operators need to be careful that customers are not misled into purchase decisions on the basis of distorted claims.
