Summary of Council decision:
Three issues were investigated, all of which were Upheld.
A direct mailing promoted EE broadband. Text on the front of the mailing stated "JUST THINK: BETTER HOME BROADBAND FOR LESS". Text on the reverse stated "INTRODUCING BRITAIN'S MOST RELIABLE BROADBAND FOR STAYING CONNECTED ... Enjoy an exclusive offer on our award winning broadband, perfect for staying connected with friends and family, and you'll get all this: ... Inclusive Bright Box router - no engineer required ... Simple set up - just plug in your router and you're ready to go ...". Small print at the bottom of the ad stated "T&Cs: Most reliable broadband for staying connected: Based on Ofcom report on UK fixed-line broadband performance, May 2013 (published 7 August 2013). Figure 4.8 on page 25 shows that in May 2013, EE customers experienced less latency than BT, Karoo, Plusnet, Sky and TalkTalk customers. Figure 4.24 on page 33 shows that in May 2013, EE customers experienced less jitter than BT, Plusnet, Sky and TalkTalk customers. This means that EE is good for real time services such as Skype, video calling & gaming".
British Telecommunication (BT) challenged whether the claim "Britain's most reliable broadband for staying connected":
1. was misleading and could be substantiated, because they did not believe that the Ofcom report referred to included any direct measurement of connectivity;
2. was misleading and could be substantiated, because for the two measurements cited, latency and jitter, EE did not score higher than BT to a statistically significant degree; and
3. was misleading, because it was not sufficiently clear that it related to fixed-line broadband only, rather than both fixed-line and wireless router performance.
1. EE Ltd stated that the ad had been designed to draw out the benefits of EE broadband according to the latest Ofcom report entitled "UK fixed-line broadband performance, May 2013" (the report), published in August 2013. They explained that having reviewed the report they identified that their product was superior to other internet service providers (ISPs) in terms of packet loss (the proportion of data packets lost in transmission over a connection), latency (the time taken for a packet of data to travel to a third-party server and back) and jitter (the rate of change of latency), and that the report stated "EE performed particularly well with low levels of packet loss and latency". They also highlighted that the report set out how each of those measures would affect user experience, and that low scores for packet loss and latency were important for online gamers and those streaming content or using voice over internet protocol (VoIP), whilst a lower measure for jitter was indicative of a more stable connection. As those measures were mostly concerned with real time activities such as VoIP and video calling, EE thought a claim which focused on reliability as it related to those activities was appropriate, hence they chose a claim to communicate that EE broadband was the most reliable for 'staying connected' with people. EE highlighted that the qualification "staying connected with friends and family" was contained within the body copy shortly after the headline, and believed that it emphasised the fact that their broadband was superior in relation to activities such as VoIP.
EE understood that BT objected to the claim as they understood the report did not include any direct measurements of connectivity. However, whilst not direct, they said the report clearly indicated the importance of the three measures they had highlighted, each of which related to the reliability of a connection as perceived by an ordinary consumer. They said that online gamers with sustained packet loss would experience choppy and broken up video and audio, which they would be likely to describe as a 'poor connection'. They said the same could be said for latency and jitter, as lower levels of jitter resulted in a more stable, and hence a more reliable, connection.
EE also said the footnote text referred customers to the report and provided specific page numbers and graphs so consumers could verify the claim. The text also included an explanation that lower latency and jitter meant that EE's broadband was better for activities such as video calling. In light of the complaint, however, they had realised that the ad had inadvertently omitted a reference to packet loss in the footnote text. They said that reference would be included in future ads.
2. EE provided the relevant graphs from the report which showed the results achieved for the ISPs in relation to latency, jitter and packet loss. They highlighted that for each measure the graphs showed that EE outperformed BT to more than a statistical degree.
3. EE said the ad in no way implied that the claim applied to router connectivity. They said the headline was separated from the reference to the router, which was prefixed with "and you'll get all this ...". They said, if the router had been part of the reliability claim, that would have been drawn out in the copy and footnotes. In addition, the footnote text referred customers to particular pages and graphs of the report which solely related to fixed-line broadband performance. Therefore, they believed consumers would not infer from the ad that the claim of reliability related to the router as well.
1., 2. & 3. Upheld
The ASA understood that EE intended the claim to mean that EE's broadband was the most reliable for 'staying connected' with people, in that it was good for services such as Skype, video calling and gaming. We noted, however, that the front of the mailing simply stated "Better home broadband", and did not refer to the benefits of EE broadband in terms of real time services. In addition, whilst we noted that the body copy stated "... perfect for staying connected with friends and family", and that footnote text referenced specific services, we considered that that text was not sufficiently prominent, and that most consumers reading the ad would understand the claim to mean that EE offered the most reliable broadband in terms of maintaining a broadband connection and had lower drop-off rates than their competitors, enabling customers to 'stay connected'. Therefore, we considered that to substantiate the claim, EE needed to provide evidence to show that the maintenance of an EE broadband connection was superior to other ISPs.
We understood that in addition to assessing broadband speeds, the report included a section entitled "Other measures of performance" which set out important metrics used to evaluate fixed-line broadband performance. We noted that the report showed that EE had scored well in relation to jitter, latency and packet loss, which were metrics that were important for gamers and VoIP users to ensure a stable connection. We noted, however, that although each of the relevant graphs appeared to show that EE scored lower than their competitors, the report clearly stated that those differences were not statistically significant when compared to BT. Therefore, we considered that the report did not demonstrate that EE was superior to BT in relation to those measures.
We also noted that EE believed that customers would understand "broadband" to refer to the internet connection from the telephone network to the router. We noted that the footnote text stated "Based on Ofcom report on UK fixed-line broadband performance ...". However, we considered that that qualification was not prominent enough, and therefore most consumers would believe "broadband" referred to the internet connection from the telephone network to an internet enabled device, including the wireless connection transmitting the broadband connection from the router to the device. We noted that EE had not provided any evidence to demonstrate superior wireless router performance in relation to the maintenance of a connection.
Because we considered that consumers would understand the claim to relate to reliability of a broadband connection, including fixed-line and wireless router performance, and EE had not provided sufficient evidence to substantiate the claim, we concluded that it was misleading.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
The ad must not appear in its current form again. We told EE to ensure they held sufficient evidence to substantiate their claims in future.