A tweet and a wraparound national press ad, seen in August 2019, promoted Three’s 5G service:
a. The tweet stated, “If it’s not Three, it’s not real 5G”, and included images of several products including a Superman-like action figure called ‘Special Man’ and ‘Burt Sampson’.
b. The press ad, a wraparound in the Metro newspaper, stated, “If it’s not Three, it’s not real 5G … We’re building the UK’s fastest 5G network”. The rear of the wraparound stated, “Spectrum is the wobbly air that network need to transmit data – and we’ve got more 5G spectrum than anyone else. Plus, not all spectrum is created equal. We’re the only UK mobile network to have 100MHZ of 5G spectrum in one big block that’s real 5G. We’re building the UK’s chunkiest spectrum leading, router bursting, lag punishing, speed dominating 5G network. When the future comes, you’ll be glad you’ve got 5G. When the future comes, you’ll be glad you’re on Three”.
British Telecommunications plc, Vodafone Ltd, an independent consultant in mobile telecommunications and five members of the public challenged whether the claim “If it’s not Three, it’s not real 5G” was misleading.
Hutchison 3G UK Ltd t/a Three believed the extent of their 5G spectrum and the infrastructure of their network set them apart from their competitors. They believed the technicalities of 5G were not well understood by consumers, but that there was a limit to how much explanation could be included in an ad. They said more detailed technical information, written with consumers in mind, was accessible on their website.
Three said they had acquired 140 MHz of immediately usable 5G spectrum, including 100 MHz in one contiguous block. They said there was a direct correlation between the size of the spectrum deployed by an operator, particularly if it was contiguous, and the data transfer speeds that could be achieved on that operator’s network (assuming other variables were equal). They said their 100 and 140 MHz figures contrasted with the 40 or 50 MHz other operators had, and that the other operators would be unable to obtain more spectrum until it became available in spring 2020.
Three said the structure of their network (a cloud core and 20 data centres across the UK) delivered the lowest possible latency and better service experience and that other providers would not have similar infrastructure in place for two years or more. Three said they had overhauled their network and service delivery systems to increase resilience and capacity and reduce latency, in order to accommodate the expected increase in data usage that would come with 5G.
Three cited the views of the International Telecommunication Union, the European Conference of Postal and Telecommunications Administrators, the GSM Association (a trade body for mobile operators) and Huawei on the importance of a 5G operator having at least 100 MHz of bandwidth if they were to deliver high speed, low latency services. Three believed their access to this bandwidth set them apart from other 5G operators, none of which had access to 100 MHz of bandwidth, and that this was what the reference to “real 5G” was intended to relate to.
Ad (a) stated “If it’s not Three, it’s not real 5G” in a context which included images of various imitations ? a superhero, a cartoon figure, a computer game and a take-away food brand.
Ad (b) stated the same claim, in a context which included the phrases “When the future comes, you’ll be glad you’ve got 5G. When the future comes, you’ll be glad you’re on Three”. The ASA considered consumers were unlikely to be familiar with the technical specifications of 5G and that they would primarily associate it with speeds that were significantly faster than 4G services.
Overall we considered they would interpret the ads to mean that the 5G services offered by other providers would not provide those significantly faster speeds and that there was little value in obtaining 5G from them. We obtained informal advice from Ofcom. We considered the technical specifications of 5G were evolving but we understood 5G would provide faster speeds and improved responsiveness; more capacity for the increased number of devices that would be connected and the ability to handle more data, compared with 4G services.
We considered that, at the time the ads were seen in August 2019, and at the time of writing in January 2020, the choice of mobile phones which could support 5G services was still very limited and that take up of 5G services was still at an early stage. We understood that, all other factors being equal, greater bandwidth would allow a provider to support greater traffic capacity. However, because take up was still so limited, differences in 5G capacity between networks were unlikely to result in material differences in the experiences of end users at the time the ad appeared. Given that, we considered Three's 5G service was not, at that time, likely to be so significantly better than other 5G services as to render them not "real" 5G, or such that there was little value in obtaining those services. We therefore concluded that the claim "If it's not Three, it's not real 5G" was likely to mislead.
The ads 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) 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 ads must not appear again in the forms complained of. We told Hutchison 3G UK Ltd t/a Three to ensure future ads did not mislead by, for example, using wording which suggested that the service offered by competitors did not provide the significantly faster speeds that 5G was expected to provide.