Background
Update to Advertising Codes (7 April 2025):
On 7 April 2025, the Advertising Codes were updated to reflect the revocation and restatement of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – the legislation from which the majority of the CAP and BCAP rules on misleading advertising derived) by the Unfair Commercial Practices provisions in the Digital Markets, Competition and Consumers Act 2024 (DMCCA). On that date, the wording of a number of the rules in the Advertising Codes was changed to reflect relevant changes introduced by the DMCCA on 6 April 2025. Given that the complaint, which formed the subject of this ruling, was received before 7 April 2025, the ASA considered the ad and complaint under the wording of the rules that existed prior to 7 April 2025. The Ruling (and references to rules within it) should therefore be read in line with this wording, available here – CAP Code and BCAP Code.
Summary of Council decision:
Two issues were investigated, one of which was Not upheld and the other was Upheld.
Ad description
EE’s website www.ee.co.uk, seen on 26 July 2024, featured a page headed “PAY MONTHLY SIM ONLY DEALS”. Nine SIM-only data plans of varying contract lengths, all entitled “Unlimited”, were listed.
At the bottom of the page, a heading “Frequently asked questions” included an expandable subheading stating, “The legal bit”. Once expanded, further text became visible, including a section entitled “Unlimited Data Plans”. Text underneath stated, “[…] Personal, non-commercial use only We will consider usage above 600GB/month to be non-personal use and have the right to apply traffic management controls to deprioritise your mobile traffic during busy periods or to move you to a business plan […]”.
Issue
The complainant challenged whether the claim that the data plans were “Unlimited” was misleading because:
- 1. a Fair Use Policy (FUP) of 600GB per month applied; and
- 2. the ad did not make the FUP restriction sufficiently clear.
Response
1. EE Ltd (EE) referred to the CAP Advertising Guidance (the Guidance) on making “unlimited” claims in advertising for telecommunications services. They confirmed that legitimate users who exceeded the FUP of 600 GB per month would not incur an additional charge, nor would they have their service suspended. They believed the limitations imposed on such users were moderate; on exceeding the limit, their traffic was deprioritised at busy cell sites from the time they exceeded the data threshold until the end of their monthly bill cycle. EE referred to the most recent Ofcom report, which stated that the average fixed line broadband data consumption for a UK household was around 535 GB per month, and average mobile data use was 9.9 GB. EE provided data to show the proportion and number per month of customers impacted by the FUP. They said they considered any use that exceeded 600GB to be non-personal use.
EE explained that the measure applied only to the 4% of cell sites across the UK that were congested, and that even those sites were not busy all the time. They provided data to show the reduction in average throughput speed that a consumer who was subject to the FUP was likely to experience when the cell sites in question were busy. It was a guideline only, because many other factors such as signal strength and levels of congestion would come into play and also because it would vary from site to site. EE pointed out that users were extremely unlikely to notice the speed reduction if they were listening to music, using maps or browsing websites, activities that required only a few hundred kilobits per second. They might, however, experience a slower speed if they downloaded a large file. EE added that, given that speeds varied due to environmental factors, users might well achieve a slower download speed at a congested site with no traffic management than they would do at another site when traffic management was applied. Similarly, HD streaming could be affected at congested sites.
EE provided excerpts from the terms and conditions for unlimited plans from 13 key mobile broadband providers. They pointed out that all except one applied a FUP to their unlimited plans, and that even the one provider who did not would need to manage traffic at busy times.
2. EE believed their FUP was displayed with sufficient prominence, and that its positioning in a dropdown box in the terms and conditions section was in line with industry practice. They believed they provided significantly more information than some competitors, and the same amount as two others.
Assessment
1. Not upheld
The ad featured a tab at the top of the page that enabled consumers to switch between two categories of data package: “Unlimited” and “Fixed data”. The “Unlimited” page listed SIM-only data packages, all of which were entitled “Unlimited”. Two of the packages were additionally flagged as “Unlimited data” and “Unlimited data at max speeds”.
The Guidance stated that providers of “unlimited” telecommunications services must be able to demonstrate that a provider-imposed limitation was not contrary to the average consumer’s expectation of a service advertised as “unlimited”. As such, unlimited claims were likely to be acceptable only when, firstly, a legitimate user incurred no additional charge or suspension of service as a consequence of exceeding any usage threshold associated with an FUP traffic management policy; and secondly, when provider-imposed limitations that affected the speed or usage of the service were moderate only. The FUP stated that the data plans were for personal use only and that use in excess of 600 GB per month was considered non-personal use. The policy specified that when usage was deemed non-personal, EE could move the consumer to an alternative “business” plan or apply traffic management controls to deprioritise a consumer’s mobile traffic during busy periods.
We understood that EE did not charge users who exceeded the data allowance and that those users would not have their service suspended. We considered that the figures from the Ofcom report suggested that a legitimate user was very unlikely to exceed the 600 GB limit (although we acknowledged that merely exceeding a particular level of usage would not in itself render a user illegitimate).
The Guidance also stated that “unlimited” claims in advertising were likely to be acceptable only if any restrictions put on that service did not run contrary to what the average consumer would expect from an “unlimited” service. Any limitations that were imposed on the speed or use of the service should not stop legitimate users from doing normal online activities like streaming content.
We assessed the figure provided by EE for the percentage reduction in average throughput speed a user subject to the FUP might experience at a congested site. EE requested that we keep that figure confidential. We understood that restriction meant that users who were subject to the FUP who attempted to download content at a congested site were likely to experience a slower speed. We understood that a similar impact was likely for heavier streaming, such as HD. However, we noted the restriction was unlikely to impact users engaging in other activities such as web browsing or listening to music. We also noted congested sites made up only 4% of the network and that even those sites would not be busy all of the time. In addition, we understood that the effect of traffic management on affected users would not be dissimilar to, and could be less than, the reduction in speeds generally experienced by users who attempted to download at busy sites. For those reasons, we considered that consumers would not see the restriction as immoderate.
Because users did not incur a charge or suspension and because the restrictions imposed were moderate only, we concluded that the claim that the data plans were “unlimited” was not misleading.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), but did not find it in breach.
2. Upheld
The main body of the ad did not state that an FUP applied, and did not feature any signposting within the plan details to indicate that qualifications might apply. We considered that consumers would not necessarily be aware that a provider might apply traffic management to the advertised data plans. The Guidance stated that any provider-imposed limitations, as well as meeting the conditions referenced in Point (1) above, must be clearly explained in the marketing communication. Notwithstanding that users did not incur a charge or suspension, and the restrictions imposed were moderate only, we considered that the existence of the FUP constituted a limitation and should therefore be made clear in the ad.
The terms of the FUP were detailed at the bottom of the webpage within a section entitled “Frequently asked questions”. That section was not visible when viewing the SIM-only plans; it was necessary to navigate further down the webpage. Within that section, the text containing details of the FUP was visible only when the subheading “The legal bit” was expanded.
We considered that consumers would not necessarily scroll further down the page, nor click on “The legal bit” heading in the “Frequently asked questions” section. Consequently, we considered that the existence of the FUP could easily be overlooked because of its placement in an expandable section situated beneath the main body of the ad. Because the ad did not clearly present the qualification to the “unlimited” claim, we concluded that it was misleading.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), and 3.9 and 3.10 (Qualification).
Action
The ad must not appear again in the form complained of. We told EE Ltd to ensure that their unlimited claims were directly qualified with the terms of their Fair Usage Policy.
