A website, www.gigaclear.com, for Gigaclear, a company that offered community broadband, featured text that stated "How fast is the Gigaclear network? Each customer connection to the Gigaclear network runs at 1000Mbps (1Gbps) for uploads and 1000Mbps (1Gbps) for downloads regardless of time of day, weather or distance from the cabinet. Depending on the package subscribed to, customers always have a symmetric service so the upload and download speeds are the same e.g. customers on the Home50 package can upload and download at 50Mbps simultaneously. Some customers also have a burst capability, so they can take advantage of the unused bandwidth available to them and upload/download at a considerably faster rate. This 'burst' capability is available to customers on the Home H50, H100 and H200 packages for 48Hr periods for just £4.80. It provides unlimited use of all available speed up to 1000Mbps".
The complainant challenged whether the ad misleadingly implied that customers would always receive the stated speed capacity for the service they had purchased, because they believed the speed customers would receive was dependent on additional factors.
Gigaclear Ltd said each customer would receive the stated speed capacity for the service they had purchased. They said that each customer had their own dedicated fibre connection and explained that the Permitted Information Rate (PIR) was set at 10% higher than the advertised speed capacity. For example, the H50 package which offered consumers a 50 Mbps service, had a PIR of 55 Mbps. They provided data from customers' usage, which they said demonstrated that customers could achieve the stated speed capacity for the service they had purchased. They also provided line speed data for their customers from a number of line speed test services.
The ASA understood Gigaclear was a niche provider, serving a geographically defined customer base. We also understood they had a significant backhaul capacity in proportion to the relatively low numbers of customers. We acknowledged their belief that the structure of their network ensured users could achieve the stated speed capacity.
The ad included details of the stability of Gigaclear's network; noting that the network ran at 1000 Mbps for uploads and downloads regardless of time of day, weather or distance from the cabinet. The ad also made no reference to the speed of the service being 'up to'. In that context, we considered consumers would understand the ad to mean that customers would always receive the stated speed capacity for the service they purchased.
Whilst we acknowledged that the majority of the line-speed data demonstrated that the advertiser's customers received the stated speed capacity, we were concerned that a number of instances, in the relatively small data sample, showed that Gigaclear's customers did not achieve the stated speed capacity. Because we considered the speed claims were absolute in nature and because we had not seen sufficient evidence to support those claims, we concluded that the ad breached the Code.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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).
The ad must not appear again in its current form. We told Gigaclear Ltd to ensure ads were not likely to mislead consumers in future.