A website and regional press ad, for pay-monthly mobile phone tariffs:
a. The website ad,featured a table which listed five different "Smart" pay-monthly tariffs. The table stated that four of the tariffs had "Unlimited" data and "Unlimited" texts. Small text at the bottom of the web page included, "Unlimited texts on 18 and 24 month contracts only and can only be used by the main contract holder. Fair usage policy applies to unlimited texts of 6000 per month ... and unlimited data of 500MB per day".
b. The press ad stated, "Samsung S5 £49 on £46/m IN-STORE NOW" and "Includes UNLIMITED DATA AND UNLIMITED TEXTS!". Small print stated, "Price based on 24 month contract. Terms & conditions apply see www.sure.com".
JT (Jersey) Ltd challenged whether the "unlimited" claims were misleading and could be substantiated, because consumers were subject to a Fair Usage Policy (FUP).
Sure (Jersey) Ltd said their "Smart" plans priced at £21 and above were subject to a stated FUP in relation to data usage and texts. They said all their terms and conditions were referred to in their ads and were viewable online.
With regard to data use, the FUP limited customers to 500 MB of data per day. Sure said that if a customer reached 400 MB of use in a day they were notified to say they were reaching their daily limit, but they would continue to receive high speed access, at up to 7.2 MB/s, until they reached 1 GB of data use. At that point their speed would be reduced to up to 384 KB/s until midnight that night, and they were notified that they had reached their daily limit. Customers were not charged for use beyond the FUP limit.
Sure said they used a daily, rather than monthly, policy in relation to data because it meant that the very small group of customers who did hit the limit were able to amend their usage the next day, rather than being slowed or blocked part-way through a month and having to wait until the new billing period before they had full access again. Sure said that the average data usage for their customers was well below 1 GB per month. They said their policy allowed more than 30 times the average use before the FUP was enacted.
With regard to texts, the FUP limited customers to 6,000 texts per month. Sure said that once a customer exceeded that amount they would be charged as per standard rates.
The ASA noted that a FUP of 6,000 texts per month and 500 MB of data per day applied to Sure's "Smart" pay-monthly tariffs of £21 and above per month. We considered that consumers were likely to expect that features of services described as "unlimited" were not unduly limited and that where FUPs existed the restrictions could reasonably be considered to be moderate only.
We noted that Sure's customers who exceeded 6,000 texts per month were then charged at the standard rate for texts. We considered that constituted a restriction likely to be contrary to the average consumer's expectation of a service with "unlimited" texts and concluded the "unlimited texts" claims were therefore misleading.
With regard to data usage, we noted Sure's assertions that only a small group of customers reached the data limit, and that because it was based on daily usage customers would be able to amend their usage the following day. However we noted that when customers reached the limit, the speed at which they could download data was severely restricted, in comparison to their normal speeds, for the remainder of that day. We considered that restriction was contrary to consumer's likely expectations of an "unlimited" data service. We concluded the ads were misleading.
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 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
The ads must not appear again in their current form. We told Sure (Jersey) Ltd not to make "unlimited" claims if additional charges applied, or if they imposed restrictions that were more than moderate, as a consequence of exceeding a usage threshold associated with a Fair Usage Policy.