Ad description
A website for an online backup service, www.livedrive.com, stated "Unlimited Online Backup Instantly protect all your photos, music and documents. Works on PC and Mac - Free trial, start today".
Issue
The ASA received two complaints.
The complainants challenged whether the claim "unlimited online backup" was misleading and could be substantiated.
Response
Livedrive Internet Ltd stated that the backup accounts had unlimited storage for files on a computer (including those on a permanently connected external hard drive), but that the number of devices connected had to be within the limits that were set for each product and outlined during the sign-up process. They stated that users could backup the files stored on their computer, no matter how large their hard drive or how many external drives were connected to their computer, and considered that this matched the intent of CAP guidance that providers of an 'unlimited' service should be able to demonstrate that any provider-imposed limitation would not be contrary to an average consumer's expectation of a service advertised as 'unlimited'.
Livedrive also stated that, distinct from the amount of storage data available or used, some customers used a lot of bandwidth when uploading large amounts of data in a short amount of time. They said that over 99.95% of their customers used the service (uploading, downloading, streaming and sharing files) without using an excessive amount of Livedrive's bandwidth and without having an adverse effect on the rest of their customers. They said that fewer than 0.05% of their customer base were using excessive amounts of data within a relatively short amount of time and as a result were reducing the speed of the service for the rest of their customers. As such, they felt compelled to act to preserve their service by closing these accounts. They considered this matched the intent of CAP guidance that limitations imposed on the speed or usage of a service should not prevent or hinder consumers from carrying out lawful online activities at or close to their normal connection speed.
Livedrive stated that their terms of service contained the provision to terminate services if customers used the service in a manner that resulted in excessive bandwidth usage, as determined by them. They said that it was not within their best interests to close the accounts of customers paying them a monthly subscription or to take any action that could lead to negative PR toward them. They stated that bandwidth was a limited resource for Livedrive and that if it was abused by a few users it would affect the rest of the customer base. They said they wanted to be fair to their current customers and provide them with the best service possible at an affordable price.
Assessment
Upheld
The ASA considered that consumers would understand from the claim "Unlimited Online Backup" that they would be able to use the service to back up as much data as they wished, and that they would not be penalised for uploading large amounts of data. We understood that bandwidth was a separate technical issue from the amount of storage available, but that customers uploading a large amount of data over a fast connection would need to utilise proportionally more bandwidth than those uploading less data or using a slower connection. We therefore considered that terminating contracts for use of excessive bandwidth, when the reason for this excessive bandwidth was the uploading of large amounts of data, had the effect of penalising customers for using the service in the manner that they would have reasonably expected. We understood that Livedrive had closed the accounts of a small proportion of their heavy-use customers in order to preserve the available bandwidth for others, but considered that in so doing they had imposed a limitation on those users that would prevent them from carrying out legitimate activities. Although we noted that the provision for contracts to be terminated for this reason was outlined in the terms and services, we considered that this contradicted, rather than qualified, the headline claim. We therefore concluded that the ad was misleading.
Notwithstanding the above, we also understood that the 'unlimited' storage related only to the files on specific computers registered for the service, rather than to data stored across multiple computers. We noted that the page in question also stated "Automatic online backup for all of your computers, from just £3.00/month", but understood that this price related only to the backup of a single computer and considered that, particularly in conjunction with the phrase "Instantly protect all your photos, music and documents", this would imply to consumers that the service operated across all the computers on which their files may be kept. Although we understood that there was no imposed limit on the amount of storage that would be backed up from the registered computers (including connected external hard drives), we considered that the restriction of the service to a specific number of machines was material information that should be available to consumers at the outset, rather than during the sign-up process. Therefore, we concluded that the presentation of this aspect of the service was also misleading.
The ad breached CAP Code (Edition 12) rule
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
Action
The ad must not appear again in its current form. We told Livedrive Internet Ltd to ensure that future ads did not contain an ”unlimited” claim while they had a policy that would limit the use of this service by legitimate users, or that omitted material information about the nature of the service.
