ASA Adjudication on TalkTalk Telecom Ltd
TalkTalk Telecom Ltd t/a
11 Evesham Street
16 May 2012
Internet (on own site)
Computers and telecommunications
Number of complaints:
A speed checking facility, for a broadband service, was viewed on 10 December 2011 on the talktalk.co.uk website. When the complainant entered his postcode, it stated "Your estimated speed 3.8 Meg Your estimated speed range is between 2.1 and 5.3meg ...".
The complainant challenged whether the ad was misleading, because he was a Talk Talk customer and had been informed that the maximum speed available to him was less than 2.1 Mbit/s.
CAP Code (Edition 12)
TalkTalk said they were compliant with the Ofcom Voluntary Code of Practice on broadband speeds, which stated that internet service providers (ISPs) must "provide a facility (line checker) on their website so that consumers can find out, in a clear and easily accessible manner, what their estimated access line speed is". They said that, given the material differences between the network measured access line speed and the throughput speeds consumers were likely to receive, the Code of Practice also required that ISPs explain that the actual throughput speed received would be influenced by a number of factors. TalkTalk said that in order to comply with that requirement, consumers' attention was drawn to a link that stated "How do we estimate your speed?", which opened a pop up window that set out the factors that would have an effect on the actual throughput speed they would experience. They said the speed checker results themselves were based on the methodology set out in the Code of Practice, which was based on the standard distribution of access line speeds shown across their network but limited to between the 20th and 80th percentiles.
TalkTalk said there was a clear conflict between the requirement to provide a speed checker and the methodology involved and the requirement to substantiate claims under the CAP Code, because it was inherent, due to the nature of the methodology approved by Ofcom being based on a statistical model of standard distribution, that certain customers would fall outside of the standard distribution and would achieve speeds that were either higher or lower than that estimated. They said the speed checker was qualified, with the prominent statement that the speed was an estimated one as well as the text "Your estimated speed range is ...", for that reason. The speed checker results were further qualified in the pop up window by the explanation of how the results had been calculated and the factors that might affect the actual speed that would be attained by the consumer. They therefore believed the results were not misleading.
They said they recognised, however, they could implement certain changes to improve the consumer experience in relation to the speed checker. They said they intended to amend the qualifications that appeared in the pop up window to provide greater detail. While TalkTalk believed that the link that opened the pop up was already given ample prominence by its positioning directly below the speed checker result, which was shaped like an arrowhead to point to the link, the text "How do we estimate your speed?" would be amended further to increase its prominence. They said that because they were required to provide a speed checker, and the methodology was approved by Ofcom, the only available approach in relation to the accuracy of the results was to qualify them as necessary.
TalkTalk said that, under the Ofcom Voluntary Code of Practice on broadband speeds, ISPs must also do all they could to assist customers who could not attain speeds within the range estimated. If they were unable to provide a speed above the 10th percentile to customers, they were free to end their contract without penalty under the terms of the Code of Practice. They said speed checker results were by their nature personalised on the basis of data provided by the consumer and therefore each marketing claim was relevant to the particular consumer. TalkTalk provided data, which was commercially sensitive, related to the connection speeds for customers on their network in December 2011 and said they had therefore substantiated the individual marketing claim in question. They said the telecoms network was not organised on the basis of postcodes and therefore it would not be of assistance to provide data specifically related to the complainant's postcode.
The ASA noted TalkTalk intended to amend the qualifying text related to the speed checker. However, although we acknowledged the ad made clear the speed quoted was an estimated one, we considered the text "How do we estimate your speed?" was not sufficient to make clear that the throughput speeds consumers actually received were likely to vary and that, most of the time, they would be lower than the estimated access line speed range. We understood the speeds consumers received would be influenced by a number of factors but that the access line speeds given measured the potential maximum for a particular time rather than the actual throughput speed the consumer would achieve.
We noted that text linked to a pop up window which included further information, was headlined "Why broadband speeds vary?", but considered it was not clear from the text "How do we estimate your speed?" that that was the case. We also considered the information that appeared in the pop up window at the time the complainant saw the ad did not go far enough to make clear the speed consumers received was likely to be lower than the estimated access line speed range. We considered the overall impression of the ad was such that consumers would understand the information provided by the speed checker to be indicative of their likely actual throughput speeds.
In the context of the understanding we considered was likely to be taken from the ad, we expected to see evidence to demonstrate that the speed checker accurately reflected the throughput speeds consumers received in the majority of cases. We noted TalkTalk had submitted data they believed demonstrated the accuracy of the speed checker. We also noted, however, that the data did not include information about the speeds that were estimated for those consumers in order to allow a comparison that demonstrated that the speed checker accurately reflected the throughput speeds consumers received.
We noted that some speed issues experienced by consumers could relate to their own particular circumstances and, to that end, the complainant's issue might be a customer service one, rather than an indication of the general reliability of the line checker. However, because we had not seen directly relevant evidence to support the impression that was likely to be taken from the ad – that the speed checker was indicative of the likely actual throughput speeds consumers would achieve in the majority of cases – we concluded that the ad breached the Code.
The ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation).
The ad must not appear again in its current form. We told TalkTalk to ensure their speed checker results were more clearly qualified in future. We also told them to ensure they were in a position to provide evidence to substantiate the impression that was likely to be taken from their future advertising claims.