ASA Adjudication on Hutchison 3G UK Ltd

Ad

A national press ad and a TV ad for 3 mobile services.

a. The press ad stated “FREE CALLS FOREVER FREE SKYPE-TO-SKYPE CALLS NO NEED TO TOP-UP”.

b. The TV ad voice-over stated “Fancy joining the millions already making free calls forever with Skype? You can now get a smart Sony Ericsson G502 ... for just £10 a month plan. It was £15, so that’s a saving of £5 every month.” On-screen text “While customer remains on the promoted price plan.” The voice-over continued “You also get unlimited texts. 75 any network minutes and those free Skype-to-Skype calls forever.” On-screen text stated “Free calls forever".

Issue

Talk Talk challenged whether the "free calls" should be described as available "forever" because they believed they became an inclusive element of the package after a period of time.

CAP Code (Edition 11)

BCAP TV Code

Response

Hutchison 3G UK Ltd (3) explained that Skype was a Voice Over IP (VOIP) telephony service that allowed calls to be transmitted via the internet; 3 was the only UK mobile phone service provider to permit the use of Skype from its mobile handsets.  3 argued that Skype was not an inclusive service, but rather a third-party system and software that 3 allowed its customers to use on their network, distinct from a bundled package where a marketer might add inclusive minutes, data or texts.  

In relation to ad (a) and the Skype offer on pay as you go (PAYG), 3 argued that there was no charge to consumers; the SIM card was free and there were no data use charges, top-up requirements or cost involved in obtaining the software.  3 therefore believed the service could reasonably be described as "free".

3 argued that in ad (b) there was no requirement to pay a monthly charge for the service.  In addition, on their monthly plan option, 3 offered a plan costing £0 a month where customers only paid for texts and calls they used and they were able to access Skype.  The price of the monthly contract plan remained the same after the Skype service was added and no revenue within the plan was attributable to the Skype service.  They argued that, because the Skype service was offered by a third party provider and there was no charge for the addition of the service, it could be genuinely described as "free".

Clearcast argued that the claim "forever" could be used because, at present, there was no limitation on the Skype service and 3 intended to allow access to it for as long as it was available on the internet.  3 assured Clearcast that there were no charges linked to the Skype calls.  Clearcast told 3 that they could claim to offer "free calls" for a period of six months, thereafter the calls would become an inclusive part of the package and the claim should be amended to "Skype calls are included forever".   Because the ad was only intended to air for one month, they argued that the six-month grace period would not be exceeded.

Assessment

Not upheld

The ASA noted Skype was a widely used internet service, which could be accessed via that medium, and that 3 permitted their customers to access it via their mobile phone to make calls.  We considered that Skype was a third-party system and software which was genuinely separate from and additional to the items the customer was required to pay for and was therefore a conditional purchase promotion rather than an element of a package.

We understood that the SIM plan offered in ad (a) made clear that there was no obligation on customers to top-up to use the service or keep the SIM card activated and that no charges were incurred for the data used when operating the service or initially downloading the software.  We also noted that for the offer in ad (b), the cost did not alter as a result of the addition of the Skype service and some customers could have a monthly contract, with no charge, and still use the service.  Because there was no charge for the Skype service on the PAYG or pay monthly plan and customers could indefinitely use the service without incurring a cost, and because we considered Skype would be understood by consumers to be a third party additional service accessible via 3 rather than as an element of a package, we concluded that the claim "FREE CALLS FOREVER FREE SKYPE-TO-SKYPE CALLS" in ad (a) and the claim "free Skype-to-Skype calls forever" in ad (b) were unlikely to mislead.

We investigated ad (a) under  CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 32.3 (Free) and ad (b) under CAP (Broadcast) TV Advertising Standards Code rules 5.1.1 (Misleading advertising) and 5.2.11 (Free) but did not find them in breach.

Action

No further action necessary.

Adjudication of the ASA Council (Broadcast)

Adjudication of the ASA Council (Non-broadcast)