Claims on www.lycamobile.co.uk included, under a tab entitled "Unlimited Data", "Unlimited Data, now with 4G … Unlimited Data". A banner ad on the website stated "£15 per month … UNLIMITED DATA NOW WITH 4G".
Hutchison 3 G UK Ltd and two complainants challenged whether the claim "unlimited data" was misleading and could be substantiated, because they understood Lycamobile's traffic management policy had a more than moderate impact for customers who exceeded data thresholds.
Lycamobile UK Ltd said the data speed was downgraded from 4G to 2G after excessive use, but that very few customers would ever use that amount of data in a month. They said they would amend their website, putting an asterisk after the claim linking to the terms and conditions, which stated that the speed would slow down if consumers used over 5GB of data.
The ASA considered that "unlimited" was a strong claim and that consumers were likely to expect that services, or features of services, described as "unlimited" would be subject only to moderate restrictions. We understood the "Unlimited Data" claim that appeared on Lycamobile's website referred to a service in which customers would have their speeds significantly reduced, from 4G to 2G, as a result of exceeding the data thresholds. In that context, we considered, although the restriction might only affect a small proportion of customers, reducing users' download speeds to that extent was not moderate and that any reference to it was likely to contradict, rather than clarify, the claims that the service was "unlimited". We therefore concluded that the claim "Unlimited Data" was misleading.
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) 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).
The ad must not appear again in its current form. We told Lycamobile UK Ltd not to claim that their service was "unlimited" if they imposed restrictions that were more than moderate.