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ASA Adjudication on Orange Personal Communications Services Ltd

Orange Personal Communications Services Ltd t/a Orange

St James Court
Great Park Road
Almondsbury Park
Bradley Stoke
Bristol
BS32 4QJ

Date:

26 September 2007

Media:

National press, Television, Poster

Sector:

Computers and telecommunications

Number of complaints:

1

Agency:

Fallon

Complaint Ref:

31259

Ad

A TV ad and a national press ad for Orange's mobile phone service:

a. the TV ad featured a woman acting out a play representing the things she liked to talk about. A child's voice-over stated "I like conversations that last for hours and hours, full of jokes about singing bees and talking flowers. I like it when they take up whole mornings and fill up whole nights ... I like them when they talk about parties and talk about dreams and talk about cakes covered in cream and all that they need is me and a friend and the talking to go on and never to end". The voice-over stated "talk for hours with unlimited talk and text on Orange pay monthly. Life as you like it". On-screen text stated "Fair usage. Terms apply".

b. the national press ad was headed "unlimited calls or texts on pay monthly" and further text stated "Only Orange customers can chose from four truly unlimited talk and text packages. Unlike other networks, we don't put restrictions on the time of day, or the day of the week you chose to talk ... So, day or night you can talk and text for hours and hours. Or even longer if you like". Small print stated "Fair usage. Terms apply".

Issue

T-mobile challenged whether the claims:

1. "conversations that last for hours and hours", "take up whole mornings and whole nights" and "talk for hours" in ad (a); and

2. "truly unlimited" and "day or night you can talk and text for hours and hours. Or even longer if you like" in ad (b),

were misleading, because calls and texts were subject to a fair usage policy of 3000 minutes or 3000 texts a month.

CAP Code (Edition 11)

BCAP TV Code

Response

Orange said they had several unlimited offers on their pay monthly tariffs such as unlimited texts (Dolphin), unlimited landline calls (Racoon), or unlimited calls to Orange mobiles (Canary). They said those offers were subject to a fair usage policy of 3000 minutes or texts each month. They said that policy had been drawn up using an analysis of customer usage and was purely designed to protect the network from abuse and fraud; it was not a limit on usage. They said once a customer reached 3000 calls or texts they could still carry on making calls or sending texts and they were not charged for the additional usage. However, they said they monitored usage and might withdraw a particular offer from a customer's account if the fair usage policy was continually abused and the usage appeared to be fraudulent.

Orange said they had not, to date, terminated an account or withdrawn the unlimited offer from any customer's account. They said they regularly ran analysis on usage and only a tiny fraction of their customers used more than the fair usage policy each month. They provided figures from June, which demonstrated the number of customers that had exceeded the fair usage policy on each of the tariffs.

Orange said the rationale behind the claim "truly unlimited" was that they offered packages that customers could use at any time of the day or any day of the week; they did not make restrictions on when the inclusive minutes could be used, which they believed justified the claim "day or night you can talk or text for hours and hours". They said other networks offered inclusive "unlimited" minutes which were in fact limited to evening and weekend calls only. They pointed out that 3000 minutes equated to 50 hours per month.

The Broadcast Advertising Clearance Centre (BACC) said it was apparent from the customer figures provided by Orange that only a handful of customers had exceeded the fair usage policy limit. They said as a proportion of the total Orange customer base they considered that those customers could only be described as atypical. They also pointed out that even those atypical customers were not excluded by the fair usage policy, because Orange had not withdrawn or terminated any accounts. They said on that basis they considered that the TV ad had not breached the Code.

Assessment

1. Upheld

We noted T-mobile believed that, because 3000 minutes per month equated to one hour 40 minutes per day only, the claims "conversations that last for hours and hours", "take up whole mornings and whole nights" and "talk for hours" were misleading.

We noted onscreen text stated that a fair usage policy existed. We also noted the figures Orange provided demonstrated that only a very small proportion of their customers had exceeded the fair usage policy limit and that Orange had not taken any action against those customers. However, we noted the fair usage policy limit equated to less than two hours a day and we considered that consumers were likely to understand from the claims "conversations that last for hours and hours", "take up whole mornings and fill up whole nights", "talk for hours" that they could talk for hours without exceeding any limits on their service. Because a fair usage policy existed that equated to one hour and 40 minutes a day, we concluded that the claims exaggerated the benefits of the service and were therefore likely to mislead.

Ad (a) breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising) and 5.2.2 (Implications).

2. Upheld

We noted Orange had intended the claim "truly unlimited" to refer to the fact that calls could be made at any time of the day or any day of the week and we noted the ad included a reference to that. We also noted the claim "day or night you can talk and text for hours and hours. Or even longer if you like" was intended to refer to the absence of time restrictions on Orange's "unlimited service".

However, although the fair usage policy was only a theoretical limit, which could be instigated at Orange's discretion, we considered that most consumers would interpret the word "truly" to mean that there were no limits whatsoever on the amount of calls they made, not just that they could use the calls at any time. We considered that the claim "truly unlimited", in combination with the other claims in the ad, was therefore contradicted by the fair usage policy qualification in the small print. We concluded that the ad was likely to mislead.

Ad (b) breached CAP Code clauses 7.1 (Truthfulness).

Action

The ads must not be repeated in their current form. We told Orange not to repeat the claim "truly unlimited" unless there were no restrictions on their service. We advised them to seek guidance from the CAP Copy Advice team for help with their future non-broadcast advertising.

Adjudication of the ASA Council (Broadcast)

Adjudication of the ASA Council (Non-broadcast)

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