Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Three ads for Three Mobile:
a. A paid-for search ad, seen on 6 March 2020, featured text that stated "Order Your New Phone Or SIM Today And Join The Best Network For Data. Get Your New Phone Sooner With Free Next Working Day Delivery. No Data Costs Abroad. No Bill Shock”.
b. A website, www.three.co.uk, seen on 6 March 2020, featured a page with the heading "Welcome to the Best Network for Data”. Text underneath stated “And get ready to snap, chat, binge, roam, explore and enjoy more”. Further text stated “If you want to do fun stuff, useful stuff and clever stuff on your phone, data is your best buddy. You need plenty of it and you want a network you can count on. You need the UK's Best Network for Data 2018 as voted by Mobile Choice Consumer Awards". At the bottom of the web page, there was a logo which included the text “techradar”, “MOBILE CHOICE CONSUMER AWARDS 2018”, “WINNER” AND “BEST NETWORK FOR DATA”. Underneath the logo, text stated “Best Network for Mobile Data 2018” and “As voted by consumers”. A link underneath stated “Find out more”.
c. A TV ad, seen on 25 March 2020, included a voiceover which stated, “I was just thinking about life, mad right? But one thing I don’t have to think about is Three’s supercharged new pay-as-you-go plan. It gives you a reassuring amount of control over your data. With the easy to use app, I can dial it up if I want to binge on that tiger doco or video-call all my mates. And I can dial it down if I want to spend less. Total piece of mind. Supercharged new pay-as-you-go from Three, with deals like unlimited data from £20, it’s a no brainer.” At the end of the ad on-screen text stated “Best Network for Data” and in the top right-hand corner of the screen was a logo for the Mobile Choice Consumer Awards 2019.
EE Ltd challenged whether the claim “Best Network for Data" in ads (a), (b) and (c):
1. was misleading and could be substantiated; and
2. was verifiable.
1. & 2. Hutchison 3G UK Ltd t/a Three Mobile believed that consumers would not see the Best Network for Data award as a technical award based on objective measures. They said that consumers were used to seeing consumer awards in mobile phone advertising and in other contexts. Three Mobile said that the Mobile Choice Consumer awards were in their twentieth year and were well established and well recognised in the industry. They said that the Best Network for Data award was based on the question “Which Network do you think provides the best data plans?” which was answered by a survey of consumers and by a panel of judges. In 2019, they said the panel was made up of four editors for TechRadar, who were asked what the best network was if data was their main concern when upgrading their phone. In answering that question, they were asked to consider price, range of options, if it offered 5G, and roaming. For the consumer survey, respondents were asked to answer the question “Which network do you think provides the best data plans?”, for a longlisted and shortlisted group of networks. They said that in 2019 the longlist received 3,430 votes and the shortlist received 31,119 response. They believed the fact that the question didn’t tell consumers how to answer it was a good thing, because it was gauging customer opinion. Three Mobile believed the name of the awards themselves – the Mobile Choice Consumer Awards was an indication that they were consumer driven and that the claim “Best Network for Data” was consistent with the question asked. Consumers periodically had to choose a network by considering what their requirements were and what plans were available. Three therefore believed that was consistent with the wording of the award Mobile Choice Consumer Awards.
Three Mobile said that data was seen by many as a commodity that they could buy from a variety of networks and in that decision making process, price, flexibility, amount of data and customer service were very important. Three Mobile referred to information from Ofcom, which they said showed that price, customer service and reputation were key considerations customers took into account when selecting a new network. They said none of those were readily assessed by technical measures and that consumer awards gave customers a credible way of ascertaining which networks were recommended by others that was not provided by technical tests. Three Mobile therefore believed the prominence of the logo, customers being used to consumer awards, the valuable nature of non-technical measures to determine which network was right for consumers and the name of the awarding body, together meant that when customers would see an award for Best Network for Data by Mobile Choice Consumer Awards, and would not expect it to be underpinned by technical tests.
Three Mobile said that consumer awards were well known and consumers expected them to be conducted fairly on the basis of consumer, and potentially expert, opinion. They said such consumer awards that involved voting and shortlists would not normally ensure a representative sample of respondents of each network. Respondents were asked to vote if, and only if, they had an opinion on which network provides the best data plans, and they are free to select their network. That was different to a survey in which customers were asked to rate how highly they would score their network. Three Mobile said their website home page listed information which stated “Best Network for Data” and “Customers voted us the Best Network for Data”. They said the award was therefore listed prominently and clicked through to a page about their awards. Three further said that their awards page clearly set out the basis of the award. Three Mobile said that the TV ad was about someone thinking of choosing a network based on the ease of use, flexibility and value of the presented offering, but that it was nothing to do with network testing. They said that given most networks provided unlimited texts and minutes, for many consumers a key factor was the cost of that data. Three Mobile said the award was consistent with that. They said there were no assertions in the ad regarding network performance or superiority, and nothing in the ad’s context to suggest that the award was based on technical performance characteristics. They believed the nature of the ad strongly suggested the opposite and which was confirmed by the presence of the Mobile Choice Consumer Award logo. Three Mobile said that underneath the claim “Best Network for Data” on the page complained of, text stated “You need the UK’s Best Network for Data as voted by the Mobile Choice Consumer Awards 2019”. They said that at the bottom of the web page they included the Mobile Choice logo, a short description of the award and a link to their awards page. They said that text which stated “don’t just take our word for it” and “Experts and consumers love what we do and they’re not shy about saying so” both indicated that they were consumer rather than technical awards. Three Mobile recognised that the paid-for Google ad did not mention the basis of the Award and said that space was extremely limited in those ads and it was therefore difficult to include further information within the ad. They said that the ad referred to Three’s website, where they said there was a prominent qualification on their home page, which was one click away.
Three Mobile said in the TV ad the “Best Network for Data” claim appeared in the end frame and that it appeared on-screen at the same time as a prominent logo for the Mobile Choice Consumer Awards. They therefore believed consumers would immediately recognise that the logo would relate to the claim. They said that as the Awards were prominently identified on their website home page and awards page, it would be easy for consumers to find out more if they wished. Three Mobile said the ad was not comparative in a traditional sense by comparing certain specific characteristics, but that it was directed to outline the benefits of their own service only. The only element that they believed could be considered a comparative was the claim “Best Network for Data”. However, they said it was the name of the award they had have won and its purpose was to promote the award. Three Mobile said that the requirements on comparative adverts were lower where no specific competitors were named.
In relation to the TV ad, Clearcast said that the Mobile Choice Consumer Awards was a well-established and respected independent mobile phone awards organisation. They said experts from Techradar, a technology consumer review website, drew up shortlists for various categories and consumers then voted on the shortlist. Their votes were combined with the opinions of an expert panel of judges to choose the eventual winner. They said over 30,000 consumers voted in the 2019 edition of the awards. Clearcast said they were content that the advert featured the logo for the Mobile Choice Consumer Awards 2019 at the same time as the claim “Best Network for Data” was made. They therefore believed viewers would understand that the claim was based on that award. Clearcast said they did consider that there was an implied comparison in the claim even though it was based on an award. They said that because the ad made a simple claim based on publically available and easily accessible information, including the logo for the awards, this was sufficient to make the claim verifiable. They said an internet search for the 2019 Mobile Choice Awards quickly found the mobilechoiceuk.com website which gave details of the 2019 awards and a list of all the winners (along with information on how winners were chosen). Even if viewers did not recognise the awards logo, Clearcast said a search for a more generic phrase such as “Three Best Network for Data” brought up information from Three’s own website which explained the award.
TechRadar t/a Mobile Choice Awards, who conducted the survey on which the award was based, said that their website was the largest consumer website in the UK and attracted seven million users from the UK each month. All of those visitors had the opportunity to vote in the Mobile Choice awards and 34,000 of them did so. They said that amongst other questions, they asked visitors to the site “What is the best network for data?” in an open freeform question to give consumers the widest possible choice of answer. The initial freeform results were used to create a shortlist based on the most frequent themes. TechRadar said that visitors to their website could again vote in the second round. They said the final winner was then combined with the judges' decision which was evenly weighted. TechRadar said that methodology which considered broad customer appeal with expert opinion from industry judges was standard for consumer awards and was used by other consumer brands.
The ASA understood the claim “Best Network for Data” was based on Three being awarded the Best Network for Data as part of the Mobile Choice Consumer Awards. However, there was no information regarding that award in ad (a), nor was it clear from the claim which of the numerous aspects of “data”, for example coverage or variety of data plans, that the claim was a reference to. We considered that the focus on “data”, was likely to give consumers the impression that the rating was based on the technical performance of the network, rather than factors relating to the company more widely, such as customer service.
In that context, we considered the claim “Best Network for Data” in ad (a) would be understood to be based on a comparison of a range of mobile-data-related objective performance measures, for example coverage and speed, from a range of mobile data networks and that Three had been rated as having the best overall performance based on those measures.
We acknowledged that during ad (c) the claim appeared on screen at the same time as a logo for the Mobile Choice Consumer Awards. However, the claim and logo appeared only briefly and we considered consumers were therefore unlikely to associate the two together. The rest of ad (c) referred to the flexibility of Three’s “Supercharged Pay As You Go” package, which we considered would be understood as separate to the claim “Best Network for Data”, which referred to Three’s network more generally. We again considered it was not clear from the claim which aspect of “data” was being compared. We therefore considered the claim “Best Network for Data” would again be understood to be based on a comparison of a range of mobile-data-related objective performance measures from a range of mobile data networks and that Three had been rated as having the best overall performance.
We understood that the Mobile Choice Consumer Award for the Best Network for Data was decided by a panel of four judges and the results of a consumer survey, with equal weighting applied to each aspect. We therefore understood Three had not tested their network against others based on any objective performance measures related to “data”. Because ads (a) and (c) suggested the claims were based on objective technical evidence when that was not the case, we concluded the ads were misleading. Ad (b) featured the prominent claim “Welcome to the Best Network for Data” in the heading, followed by text which stated “If you want to do fun stuff, useful stuff and clever stuff on your phone, data is your best buddy. You need plenty of it and you want a network you can count on. You need the UK’s Best Network for Data 2018 as voted by Mobile Choice Consumer Awards”. We therefore considered consumers were likely to understand that the claim “Welcome to the Best Network for Data” was associated with the Mobile Choice Consumer Awards. Although the claim referred to the award having been “voted” for we considered, that because it referenced a specific, objective and measurable element of the service consumers would expect that the research involved an objective component beyond just customers’ subjective perceptions of their own networks.
We considered the ad referred to “data” in general terms and for those reasons, we expected to see evidence that a range of networks had been rated based on a robustly conducted comparison of various appropriate, relevant and objective performance measures and that Three had received the highest score of all the rated networks. The ad stated “You need plenty of it and you want a network you can count on” and we therefore considered the ad suggested that data allowance size and reliability were included in those objective measures. We assessed whether the methodology behind the award was adequate to support the claim “Best Network for Data” in ad (b) as it would be understood by consumers. We understood that the award was based only partly on a consumer survey and that the award was also based on a panel of judges, who were asked to decide what the best network was, based on data, taking into account price, range of options, if it offered 5G, and roaming. For the consumer survey, participants were asked to answer the question “Which network do you think provides the best data plans?” from a shortlisted number of networks. We considered the parameters of the judging criteria were very broad and it was therefore unclear on what each respondent, whether judge or consumer, had based their selection. With regard to the consumer survey, we understood that the results had not been weighted to reflect a representative sample of respondents on each network and it was extremely unlikely that each respondent had been a customer with each of the shortlisted networks. It was therefore unlikely that they would have an insight into how their own network compared against all others on the market. The claim suggested an objective component to the criteria, and it was unclear to us how a consumer survey would deliver such data. We considered the evidence was not adequate to substantiate the claim in ad (b) and concluded that it was misleading.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context. (Substantiation) and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors) and ad (c) breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors).
CAP Code rule 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. required that comparisons with identifiable competitors must be verifiable. That meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include, or direct consumers to, sufficient information to allow them to understand the comparison, and be able to check the claims were accurate, or ask someone suitably qualified to do so. We considered that in order to understand the basis of the comparison in the claim “Best Network for Data” consumers would need additional information. Ad (a) was a paid-for search ad. It did not include verification information for the claim “The Best Network For Data”, nor did it state where such information could be found.
We considered that the approach of providing information about the comparison immediately and prominently on the landing page to which consumers were taken would be sufficient to ensure the comparison could be verified. However, although the claim “Best Network for Data” was also referenced on the landing page, with a link to further information about awards, it only appeared towards the bottom of that page and required consumers to first scroll through a large amount of information about mobile data. We therefore concluded that the information that was needed to understand the comparison was not signposted sufficiently clearly in ad (a). As discussed in point 1 above, we considered consumers would link the claim “Best Network for Data” in ad (b) to the Mobile Choice Consumer Awards.
The ad contained a section towards the bottom of the same web page which showed the logo for the Mobile Choice Consumer Awards, underneath which was the corresponding claim “Best Network for Data 2018” and a link which stated “Read more”. The link directed consumers to the same “awards” page as previously mentioned. Therefore, as the signpost to further information appeared within the ad, we considered that information needed to verify the comparison was signposted sufficiently clearly in ad (b). As also discussed in point 1 above, we considered consumers would be unlikely to link the claim in ad (c) to the Mobile Choice Consumer Awards. Although consumers would be able to search the internet for the claim, the ad did not include any information which signposted to consumers how or where to find information to verify the claim. We therefore considered that the claim “Best Network for Data” in ad (c) was not verifiable and breached the Code. Notwithstanding the question of whether the information was signposted sufficiently clearly in each ad, we also assessed whether the information provided on the “awards” page was sufficient for consumers to be able to verify the comparison in the ads. The page contained only brief information about the award and did not include, for example, information about its methodology. The Mobile Choice Consumer Awards website contained information about the previous year’s shortlisted networks for each of their awards, alongside award winners, which included their Best Network for Data award. The Mobile Choice Consumer Awards website also included general information about how the awards worked. However, the Three website did not link to or direct consumers to that information and in any case there was no information on the methodology of the specific award, the group of respondents represented in the survey sample, or the factors that the respondents were required to consider when answering the question on which the claim was based. It also did not include the average ratings consumers and the expert panel awarded to each network. Because we considered that the details of the basis for the comparison in the ads were not readily accessible, we concluded that the claim “Best Network for Data” in each of the ads was not verifiable and breached the Code.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rule 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. (Comparisons with identifiable competitors) and ad (c) breached BCAP Code rule 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. (Comparisons with identifiable competitors).
The ads must not appear again in the forms complained about. We told Hutchison 3G UK Ltd t/a Three Mobile to ensure that they had adequate substantiation to support claims, including comparisons with identifiable competitors, in their marketing materials and that the basis of any comparison was presented clearly. We also told them to ensure that they provided sufficient information to enable consumers to verify comparisons with identifiable competitors, or signposted consumers to such information.