Ad description
Two websites and an online display ad for a Three mobile price plan, seen in June and July 2015:
a. The 'Business mobiles' section of www.three.co.uk stated "all you can eat data"
b. The 'SIM Only plans' section of www.three.co.uk stated "All-you-can-eat data ... View plan details". Clicking to view details brought up a box, in which text stated "Plan Includes (per month): Inclusive UK data All-you-can-eat data". Opting to buy the plan brought visitors to a page stating "All-you-can-eat Data ... Includes. Use up to 4GB of your data allowance as a personal hotspot".
c. An online display ad stated "All-you-can-eat data SIM for £17 a month ... Rollover for terms >". Hovering the mouse over the ad brought up text stating "Sign up for 12 months to get this SIM deal with all-you-can-eat data".
Issue
Two complainants, one of whom understood that the advertiser restricted the amount of data that could be used during peak periods and the other reported being cut off after using 4 GB of mobile data, challenged whether the claims "All you can eat data" were misleading and could be substantiated.
Response
Hutchison 3G UK Ltd t/a Three said that the claim “all you can eat” was not the same as “unlimited,” and that they had deliberately picked a name without the connotations of “unlimited”. They said it clearly had an analogy with a food buffet and that in practice there were likely to be sensible arrangements pertaining to what would be included in such a service.
Three stated that their TrafficSense system allocated a certain amount of bandwidth at peak times (3 pm to midnight) to peer-to-peer (P2P) file-sharing and tethering. They said that most networks blocked P2P traffic, because if this wasn't done then the network wouldn't be able to service time-critical requests such as email and browsing. They said that about 99% of P2P services facilitated illegal downloads but that if a customer identified a legitimate service using P2P technology then this would be assessed and, if appropriate, taken out of scope and whitelisted. This included VOIP services and multiplayer online games. Therefore, in practice, their peak time bandwidth allocation for P2P file sharing only applied to illegitimate file sharing at peak times and on average 14000–15000 customers (out of a customer base of around 8.8 million) undertook P2P file sharing at peak times. Three said they could not guarantee that a legitimate user would never be affected at peak times if they engaged in lawful P2P activity. Three acknowledged that the restriction would have a significant effect on those to whom it was applied, as this activity was actively discouraged, but because P2P file sharing was a background application and not time critical, it could carry on at low speeds. Without this measure, other services would be significantly adversely affected, so Three believed it was a false economy to consider the effect of TrafficSense in isolation.
Three understood that the available evidence demonstrated that P2P services were normally illegitimate. They provided a press article about a study at Princeton University that suggested as much as 99% of all P2P traffic was illegitimate, a report published by the IFPI (International Federation of the Phonographic Industry) estimating that this figure was 95% in relation to music, and a report by the BPI (British Phonographic Industry) stating that over 7 million UK consumers accessed illegal download sites each month. Three stated that neither complainant had identified a legitimate P2P service currently affected by the restriction.
Three said that, because the only ‘all-you-can-eat’ customers impacted by TrafficSense were those very few customers who carried out P2P file-sharing on their mobile at peak times, the ‘all-you-can-eat’ claim should be considered from the perspective of those customers, not Three’s general customer base. Those customers would have an above average awareness of the existence of traffic management, that it was a necessary aspect of managing a mobile network, and would know where to find the publicly accessible information about Three’s approach to traffic management. Research by Ofcom suggested that 73% of those who were aware of their ISP’s traffic management policy believed that the information was easy to understand. Three noted that Ofcom provided information to consumers about the potential for P2P file sharing to be slowed as a traffic management method and that, because this was available to consumers who wanted to find out more, Three’s allocation of bandwidth to P2P at peak times (particularly where identified legal services were whitelisted) would not be outside of the expectations of those customers. Three stated that further Ofcom research suggested that only about 1 in 10 consumers were aware of the term ‘traffic management’, that some consumers did not read the supporting materials for their plan, and that the average consumer did not consider traffic management as a key factor in choosing a mobile package. Three therefore believed that the average consumer had not heard of traffic management and had no expectations of it, and that a small number of consumers understood it and knew where to find information about it, and would therefore not be misled. Such consumers, being the vast majority of Three’s customers who did not engage in P2P file-sharing at peak hours, would not be impacted by TrafficSense at all, and would have no restriction on their use of data under the all-you-can-eat plan.
They said Ofcom research showed that customer expectations of mobile internet services were very different to expectations of a fixed line service, with key buying factors being cost, tariff and coverage rather than tethering or traffic management. They said the research indicated that mobile internet use was primarily for social networking, general browsing and sending/receiving emails, and that most users tolerated the variable nature of mobile internet connections partly because very few essential or heavy traffic tasks were performed on mobile devices and partly because the reliability of connections was lower. Three therefore believed that consumer expectation of mobile internet would be very different to that of fixed line broadband, and that those using non-whitelisted P2P services would be in a minority and therefore not representative of the average consumer.
Three said that, unlike other operators, they allowed tethering on their all-you-can-eat plans, although at the time the ad was seen it was subject to a limitation of between 4 GB and 12 GB depending on the type of plan. They said they made this very clear in the buying process, but that would include this information more clearly within ads for the service. Once customers used that much data through tethering they would not be able to use it again until the next billing month, but they could continue to use data for non-tethering purposes. They said that as no one offered unlimited tethering this would need to be factored into the consumer's expectations of an 'unlimited' service and believed that customers would be unlikely to expect to be able to file share or tether on an unlimited plan. They reiterated that for most consumers this was not a consideration in their purchase decision and that more informed consumers would seek out the relevant information.
Assessment
Upheld
The ASA understood that ad (a) was directed at business users of mobile services and that ads (b) and (c) were directed primarily at consumers. However, we considered that both groups would understand the claim “All-you-can-eat data” as a statement that there were no limitations on the amount of data they could use for any legitimate activities they wished to undertake. We acknowledged that consumers may not generally be aware of fair use policies or their effect on data use, but did not consider that this meant they would have no expectations of how their service was managed. Rather, we considered that both consumers and businesses would expect a service marketed as ‘unlimited’ or “All-you-can-eat” to provide use of data without undue limitations and that, where policies existed that limited speed of access, the restrictions could reasonably be considered to be moderate only. They would not expect there to be in place a policy that would contradict this claim, regardless of whether they knew what a ‘fair use policy’ was.
With regard to ads (b) and (c), we understood that the complainant who had been cut off after using 4 GB of data had been using their allowance for tethering. We understood that the limitation on tethering was not a restriction caused by the inherent limitations of Three's network, but was instead a provider-imposed limitation on the use of the service, the purpose of which was to restrict the amount of data and bandwidth used by customers. We acknowledged Three's statement that other networks did not allow tethering at all, but considered that readers would understand from the claim that all allowable use of the service was covered by the claim and would therefore have no reason to believe that it did not cover tethering, where tethering was allowed by the network. We understood that the provision to use mobile data for tethering was a feature of the service and considered that it was legitimate for this use of data to be restricted outright without contradicting an otherwise suitable 'unlimited' claim. However, we considered that, where tethering was allowed, a limitation on the amount of data that could be used in this way, even if made clear as part of a transactional journey or in another part of an ad, contradicted the claim “All-you-can-eat” by representing an immoderate restriction on legitimate data use, and that the presence of the cap should therefore have been part of the headline claim.
In relation to Three’s bandwidth restrictions on P2P activity, which was separate to the cap on tethering, we understood that limitations on the use of P2P technology that was demonstrably illegal would only affect illegitimate use of the service and was therefore not contrary to a consumer’s understanding of a service described as “unlimited”. Although we noted the service provided was to a mobile handset, which consumers were likely to use differently to fixed-line broadband, we considered that the inclusion of tethering within the terms of service (notwithstanding that restrictions on P2P were separate to the tethering allowance) was likely to lead consumers to expect that they could engage in more bandwidth-intensive activities, such as P2P activity, using the mobile device in conjunction with a computer.
We understood that some popular legitimate applications used P2P technology and that, for technical reasons, and due to privacy issues, it was not possible to determine whether a customer was using a service for legal or illegal means. We noted Three’s assertion that the vast majority of P2P services were illegitimate but we understood that a number of legitimate services also utilised P2P technology. We noted the reports provided by Three in relation to illegitimate P2P use, but the study methodologies and statistical analyses were not described and it was therefore not possible to determine the robustness and salience of the outcomes. Moreover, the first was in the form of a press report on the study and the IFPI and BPI reports related only to music downloads rather than P2P activity in general. As such, we had not seen evidence to demonstrate that illegitimate use of P2P was so significant that Three’s restriction of such services would not affect legitimate users.
Further, while we acknowledged that legitimate use of P2P technology identified by consumers would be 'whitelisted', we were concerned that legitimate services not yet identified by customers (who may not know to do so) or notified to Three would therefore be subject to traffic management. Consequently, we considered that Three could not demonstrate that TrafficSense solely slowed down illegitimate users and were concerned that a number of legitimate users could also be adversely impacted by the policy. In light of that, we considered that Three needed to show that the slowdown experienced by those subject to traffic management was moderate only. We noted, however, that Three had not provided any evidence to demonstrate the impact of the policy on their users. Further, we noted that Three had themselves acknowledged that the effect of TrafficSense on P2P users was likely to be significant. In the absence of adequate evidence to show that all P2P users on their network were illegitimate, or that the impact of TrafficSense on those affected was moderate only, we considered that Three were not able to substantiate the claims that their service was ‘all you can eat’ and concluded that the ads were misleading.
Investigated under CAP Code (Edition 12) rules
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 ads must not appear again in the form complained about. We told Hutchison 3G UK Ltd to ensure that future ads did not use "unlimited data" claims, including "all-you-can-eat data," unless they could demonstrate that TrafficSense only affected illegitimate use of the service or that any effect on legitimate use was moderate only. We also told them to ensure that any caps on tethering use as part of otherwise unlimited data plans were included in the headline claim.
