A press ad for Three, seen on 28 October 2015, featured an image of a puppet character in boxing gloves with his arms raised in a celebratory gesture, held aloft by two men. Headline text stated “The undisputed. UK’s most reliable network. Again.” The ad featured the YouGov logo in the bottom left-hand corner.
Everything Everywhere Ltd (EE) and a member of the public challenged whether the claim “The undisputed. UK’s most reliable network. Again.” was misleading and could be substantiated.
Hutchinson 3G UK Ltd t/a Three felt that consumers would see the YouGov logo in the ad and understand that the claim was based on the findings of a YouGov report. They said the YouGov logo was prominent, it was clear what the basis of the claim was, and the ad included a URL where further details were provided. A copy of the report, “The Smartphone Mobile Internet eXperience” (SMIX), produced in September 2015, was provided. The report highlighted that consumers were asked by YouGov how reliable they considered the mobile network they used was in relation to a number of measures. The results for each network’s customers were collated and then compared. Three said they had come top in each of the five consecutive quarters in the comparison about network reliability.
Three said there was no standard, objective industry test for network ‘reliability’. They considered reliability was not an easily measurable variable and meant different things to different people; to some it meant “consistency”, to others “peace of mind” or “dependability”. They felt that “reliability” related to personal experience and therefore the best way to find out a network’s reliability was to ask its customers.
The ASA acknowledged the ad included the YouGov logo and a URL at which further information could be obtained about the basis of the claim. However, we considered that the logo was not particularly prominent and could be overlooked by readers. Because the headline claim did not include a reference to YouGov or include other wording that made clear that it was based on subjective consumer views, we considered consumers were likely to understand that Three had been found to be the most reliable network based on robust objective measures of network ‘reliability’. We further considered that the wording “The undisputed” particularly implied that there were commonly agreed objective measures for network reliability, that Three had scored the best against those measures and that there was no other evidence to the contrary at the time the ad was published.
We noted the findings of the YouGov SMIX report, but concluded that because consumers would understand the claim “The undisputed. UK’s most reliable network. Again” to be based on objective measures of network reliability rather than subjective consumer opinion, the claim as it would be understood had not been substantiated and was likely to mislead. Additionally, because we understood that there were no commonly agreed objective measures of network reliability against which Three had undisputedly scored higher than their competitors, we concluded that the claim “The undisputed” as used in the context of the ad was also likely to mislead.
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), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. and 3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualification), 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 again in its current form. We told Hutchinson 3G UK Ltd t/a Three not to state or imply that Three was undisputedly the UK’s most reliable network unless they could demonstrate that there were commonly agreed objective measures for network reliability, that Three had scored the best against those measures, and that there was no other evidence to the contrary. We also told them not to state or imply that Three was the UK’s most reliable network unless they made clear that the claim was based solely on a survey of consumer opinions.