Two press ads and a poster, seen in May 2016, promoted the mobile network provider JT.
a. The first press ad stated "Officially Guernsey's FASTEST NETWORK as tested by you". Below, a graphic showed JT's average download speed compared to those of their competitors Sure and Airtel-Vodafone. Text at the bottom of the ad stated "See the results of your tests here ..." and directed consumers to a specific page on their website.
b. The second press ad included the headline "Phwoar G!" and text below stated "Thank you for taking part in the 4G Challenge. It's OFFICAL, your testing shows that JT is Guernsey's fastest network. We asked you to test the speed of our new 4G network, and those of the other local networks, during a 7 week challenge and the results are in ... Officially Guernsey's FASTEST NETWORK as tested by you". The ad also featured a comparison of JT's average download speed with their competitors Sure and Airtel, and information regarding the 7-week challenge, the sample size and how the data was collected. Consumers were also invited to visit JT's website to view the results.
c. The poster featured the headline "Phwoar G!" and included further text which stated "It's official, your independent testing shows that we ARE Guernsey's fastest network; thank you for taking part in the JT 4G Challenge". The ad also included a comparison between JT's and their competitors’ (Sure and Airtel) average download speeds and once again directed consumers to JT's website to view the results.
Jersey Airtel and Sure (Guernsey) Ltd challenged whether the claim "Guernsey's fastest network" was misleading and could be substantiated.
JT Group Ltd, trading as JT, stated that the claim was based on a number of speed tests that had been conducted by members of the public in Spring 2016 as part of the ‘JT 4G Challenge’. They explained that the Challenge was open to all Guernsey and Alderney residents, and a prize available to the individual who had the fastest speed test, irrespective of network. The Challenge was conducted using a speed test app which was independent and carried no network bias. The tests were carried out by Guernsey and Alderney residents/members of the public who tested the mobile operators’ networks. JT used in their ads the averages of all the speed tests submitted by the public, together with the best speeds achieved to ensure that the results showed the everyday user experience that consumers were likely to obtain in Guernsey and Alderney. Of the 446 speed tests submitted, 50 Airtel, 76 Sure and 320 JT entries were submitted, including multiple entries from some individuals. While they acknowledged that a small proportion of Airtel customers took part, they thought that 50 entries provided a fair view of the speeds achievable on the Airtel network. They provided a summary of the average speeds and highest speeds, by network, achieved by those taking part. While they acknowledged that the tests were concentrated to the east of the island, they said the majority of the population of Guernsey were in the east. They provided population figures together with a map of the island which showed the population density of each parish area and said they demonstrated that the test entries reflected where the population of Guernsey lived and used the mobile network.
The challenge was initially due to run from Monday 14 March 2016 until Sunday 10 April 2016, but they decided to extend the deadline until Thursday 28 April 2016 due to the low number of Airtel and Sure speed test entries. The extension enabled an additional 54 Sure and Airtel entries to be included.
When determining their sample size, JT reviewed the samples used by market research companies and those recently conducted in the Channel Islands and concluded that a sample of circa 500 was reasonable as well as being statistically significant.
They noted that the challenge was open to any operators’ customers and it was the choice of the individual to submit a speed test. JT did not stipulate that a certain number of JT, Airtel or Sure customers had to take part and did not specifically target any operators’ customers to take part in the test. They did, however, actively distribute flyers outside Sure and Airtel stores in an attempt to encourage all operators’ customers to take part in the Challenge and advertised the Challenge widely via an all-household door drop and in the main local newspaper. While a lower number of Sure and Airtel customers took part, JT noted that was up to the customers themselves and not within JT’s control.
With regard to the locations included in the Challenge, they noted that they had conducted island-wide marketing in order to encourage results from across the island on all operators’ networks. They provided a copy of the full results which included a location for the majority of the results.
The ASA noted that the claim in ads (a) and (c) was accompanied with the text “Officially” and “as tested by you”, and that all the ads stated the average download speeds of JT, Airtel and Sure. We noted that ads (b) and (c) also included more information regarding the ‘JT 4G Challenge’ and how the results had been collected, including the number of entrants and the number of locations tested. We considered that, in those contexts, readers would understand the claim “Guernsey’s Fastest network” in all the ads to mean that, as demonstrated by tests conducted by members of the local community, JT was the fastest mobile operator in Guernsey, in that the download speeds customers could achieve with JT mobile broadband were faster than their competitors.
We understood that the claim was based on the results collected via a speed test challenge during spring 2016 over a six and a half week period. During that time, JT had invited individuals living in Guernsey, regardless of their network operator, to submit speed tests using a third-party app which recorded the download and upload speeds achieved at that specific location and time. The results had then been collated and the average download and upload speeds calculated for each network. We noted that the results relied on a self-selecting sample of individuals who, in an effort to enhance their chance of winning a prize, were likely to conduct speed tests in a location and at a time likely to achieve a high speed. We understood that there had been a total of 446 entrants from approximately 273 individuals, with a number of individuals submitting multiple tests in close proximity to one another, both in terms of time and location. We also noted that when taking into account multiple entrants, the total number of Airtel and Sure customers participating was 23 and 63 respectively.
We also noted that a significant number of the results did not include a precise location. For those, however, that did include longitudes and latitudes, the tests were not evenly spread across the island but concentrated to the east, near to St Peter Port, where the speed test results achieved were often at their highest, and that the readings towards the west of the island were limited. While we understood that the area around St Peter Port was densely populated and was where most commercial activity was concentrated, we noted that the claim was general and encompassed the whole island. We also understood that a significant minority of the island’s inhabitants lived to the west of the island. Further, although JT had not provided any data to show the distribution of the tests conducted on their competitor’s networks, given the low number of entrants from Airtel and Sure customers, we considered that the results from those customers were unlikely to be representative of the speeds achieved on those networks across the island in both more and less populated areas.
For those reasons we did not consider that the data collected was representative of the speeds customers of different networks would achieve at different times of day, at different locations, across Guernsey. Therefore, given how we considered consumers were likely to interpret the claim, we concluded that it had not been substantiated and was likely to mislead.
The ads breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 claim must not appear again in its current form. We told JT to ensure their comparative speed claims were based on adequate substantiation in future that was representative of the speeds achieved by users of each mobile network across Guernsey.