Summary of Council decision:
Two issues were investigated, of which one was Upheld and one Not upheld.
A website and a TV ad, for '4GEE' mobile broadband:
a. The website www.ee.co.uk included various references to 'Superfast mobile broadband' such as "Superfast mobile 4GEE only on EE" and "4GEE: AT LAST - SUPERFAST MOBILE INTERNET 4GEE Which brings us to now - with our 4G network which gives you superfast, reliable internet wherever you are".
b. The TV ad, featuring Kevin Bacon, stated, "Hey. It's me. Always connecting. I was Hollowman, an invisible bad guy, no one could take out. Take me out with Paddy McGuiness, Let the donkey see the carrot. Carrots, the same colour as a can of tango. Amy Childs, what a ledge. Got her own calendar and swimwear range. She's made the most of what she's got. And. to make the most of the latest 4G smartphones, hook one up to UK's only superfast mobile 4G network. It's totes amazeballs. Watch out Brentford that's me, ready for the Sugar hut. Smartphones are better on superfast mobile 4G. Only on EE." On-screen text stated "'Better' based on average UK speeds. 3G: 1.5 Mbps, 4GEE: 8-12 Mbps (Ofcom and EE data). Limited coverage - check ee.co.uk. Speeds depend on location and number of users. Min. term applies. Conditions apply".
1. British Telecommunications plc (BT) challenged whether the references to "superfast mobile broadband" in ad (a) were misleading and exaggerated the service, because "superfast" was widely understood to refer to speeds of 24 Mbit/s and above.
2. BT challenged whether the references to "superfast mobile broadband" in ad (b) were misleading and exaggerated the service, because "superfast" was widely understood to refer to speeds of 24 Mbit/s and above.
1. & 2. Everything Everywhere Ltd (EE) said that the term "superfast" captured the improvements in mobile internet technology in the UK through their introduction of 4G mobile internet. They believed that consumers would not expect this mobile internet to be 24 Mbs and had seen no evidence that this was the case. They said "superfast" was a descriptive term and should be considered against the relevant context (mobile, not fixed technology). They also said that 4G was five times faster than previous mobile data speeds and consumers would understand and appreciate that it was "superfast" mobile internet.
They said that to avoid any possible confusion, the relevant ads clarified in the body copy that the claim was with respect to 'mobile' internet. They said the TV ad further clarified that 4G was 'superfast' compared to 3G speeds by providing a comparison between average 3G and 4G speeds. They said that given the ads and qualifications, the use of 'superfast' could not be considered to be misleading or exaggerated.
They said that BT's complaint hinged on the fact that there was an expectation amongst consumers in the telecoms market that "superfast" implied a certain internet speed and assumed this understanding was established through use in the fibre optic broadband market and therefore automatically applied to the mobile market. They said the BT understanding of the policy as defining "superfast" internet as speeds of 24 Mps or above was flawed and that the DCMS objective was to achieve a transformation in broadband access, with everyone in the UK able to access fixed line broadband speeds (at least 24 Mbit/s) but that the document in no way stated that "superfast" was a reference to specific internet speeds (whether fixed or mobile). They further stated that the policy was aimed solely at fixed line internet speeds and made no reference to mobile internet. They did not believe this policy was intended to define what "superfast" meant with regard to mobile 4G consumers and that it was not a suitable authority to conclude that a reasonable consumer would expect "superfast" mobile 4G speeds to be 24 Mbit/s and above. They further stated that a consideration of whether there was a wide acceptance in the market that "superfast" implied such internet speeds should be determined with consideration for the reasonable telecoms consumer. They stated that fibre optic broadband had been described as "superfast" since it was introduced in the UK and that ISP's used "superfast" to capture the development speeds as compared with ADSL.
They said that when "superfast" was first used to describe EE's 4G services, it had not yet been launched so they looked to comparisons in other countries where equivalent services were underway. They said fibre services were described as being between four and eight times as fast as ADSL and that, in the case of 4G, they could be about six or seven times as fast as average 3G speeds. They said their own speed testing demonstrated an average speed of between 8 and 12 Mbit/s and that this represented an improvement in speeds by about five to eight times compared with the previous generation of mobile internet technology. They believed the same descriptive term could therefore be used to establish the advancement in speed and technology in the context of mobile services, rather than create a direct speed comparison with fibre broadband services.
Clearcast said that "Superfast" in this context would be understood by viewers to mean that it was faster than other types of mobile phone technology currently on the market. They said they had received information from EE which said 4G operated on different technology to previous generations of phone technologies. The information also said that fibre optic broadband was already commonly described as "superfast" by the service providers who had launched it and that it relied on maximum theoretical speeds that the service could achieve but on also the average speeds that customers experienced compared to older ADSL services. They also understood from EE that fibre optic services were described as being between four and eight times as fast as ADSL, depending on the provider and that, in the case of 4G, based on the figures it was estimated that it would be about six to seven times as fast as 3G on an average speed basis and that the "superfast" term was therefore suitable for both 4G and fibre-optic services.
They believed the advertiser had demonstrated that, in countries where 4G had launched, the average speeds were faster than that of 3G and 2G and that they were unaware that any particular speed was necessary in order to be allowed to claim "superfast". They said that because the speed could suffer as a result of the number of users, they had required the ad to include on-screen text to indicate this along with text to indicate the average speeds that were available on the "superfast" mobile service.
The ASA noted the term "superfast" had come into common usage in relation to fixed line broadband following the introduction of new technologies such as fibre-optic broadband and that it was used to distinguish itself from those speeds previously achieved by ADSL. Therefore, whilst consumers may not generally have been aware of any specific speed which defined "superfast" on fixed line, we considered they would understand "superfast" to relate to fibre-optic outperforming standard ADSL and would expect it to have an industry defined minimum speed. We noted Ofcom had defined 'superfast' as both greater than 24 Mbit/s and, later, 30 Mbit/s and that a 2012 Ofcom report on the performance of fixed line broadband specifically stated that "superfast" was used in reference to speeds in excess of 30 Mbps and that this was consistent with the EU's digital Agenda scorecard definitions which defined "fast" fixed line broadband as being greater than 30 Mbit/s. A later 2013 Ofcom research document on the European Broadband Scorecard stated 'standard' broadband comprised technologies capable of providing speeds over 144 bit/s and less than 30 Mbit/s and that 'superfast' comprised technologies capable of providing speeds equal to or greater than 30 Mbit/s.
We noted website ad (a) included references to "superfast mobile internet 4GEE" and "Superfast mobile 4GEE" and considered that consumers would understand that the broadband being offered was mobile and not fixed line. Although EE believed the "superfast" term would be understood as a reference to the comparative increase in speeds of 4G versus the older 3G technology and therefore reflected the different broadband speeds made achievable by new technologies, we considered that consumers would understand "superfast" to be a standard industry term that had an agreed meaning. We acknowledged, however, that this was not yet the case in relation to mobile broadband (4G or otherwise).
No further information was displayed to qualify the claim and we considered that consumers' understanding of the ad would therefore be based on their existing knowledge of "superfast" and mobile broadband on 4G. Because most consumers were unlikely to be familiar with the capabilities of 4G, we considered that, without qualification, many consumers would therefore understand that the "superfast" definition that applied to fixed line broadband could also apply to 4G and therefore, by implication, that the achievable speeds were from 24 Mbit/s (and later 30 Mbit/s). Because the achievable speeds were in the region of 8–12 Mbit/s (which varied depending on a variety of factors) we concluded that without qualification the ad, and specifically the term "superfast mobile broadband" exaggerated the broadband speeds that could be achieved through 4GEE mobile and therefore concluded that the ad was misleading.
On this point ad (a) breached CAP Code (Edition 12) rules
Advertisements 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 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration).
2. Not upheld
We noted TV ad (b) made reference to "superfast mobile 4G" and considered that consumers would understand that the broadband being offered was mobile and not fixed line. The ad included on-screen text which included "'Better' based on average UK speeds. 3G: 1.5 Mbit/s, 4GEE: 8-12 Mbit/s (Ofcom and EE data)" and considered that viewers would understand that the mobile broadband service was better than 3G because it could achieve speeds of between 8 and 12Mbps depending on a number of factors including the user location and the number of users on the network. We considered that consumers may have understood from the ad that "superfast" had a generally agreed definition based on average broadband speeds at which 3G ended and 4G began but noted no such definition existed at the time the ad was broadcast because EE was the only mobile network offering 4G. However, because the ad clearly stated what speeds were achievable from the 4G service we considered the "superfast" claims did not imply that service was available from speeds of 24 mbit/s and therefore concluded that the ad was not misleading on those grounds.
On this point we investigated ad (b) under BCAP rules
Advertisements must not materially mislead or be likely to do so.
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means. (Misleading advertising), 3.9 (Substantiation), and 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration) but did not find it in breach.
Ad (a) should not appear again in its current form. We told EE not ensure "superfast" claims in relation for 4G mobile services were clearly qualified with accurate speeds in future ads.