Ad description
Two emails from Talk Talk, which promoted an upgrade to recipients’ broadband packages:
a. An email received 14 February 2019 had a subject which stated the recipient’s name followed by text which stated “your usage is affecting your broadband service. Let’s fix it”. The email included the heading “Your broadband isn’t keeping up with you”. The ad stated “We regularly look at how your broadband is performing to make sure you’re getting the best service. We’ve noticed that, at peak times, your current broadband may no longer be giving you the capacity you need”. The ad stated “That’s why we recommend upgrading your line to fibre, which will give you 4x more than your current capacity”.
b. An email received 26 March 2019 also had a subject which stated the recipient’s name followed by text which stated “your usage is affecting your broadband service. Let’s fix it”. The email also included the heading “Your broadband isn’t keeping up with you” and also stated “We regularly look at how your broadband is performing to make sure you’re getting the best service. We’ve noticed that, at peak times, your current broadband may no longer be giving you the capacity you need”. The ad stated “You’ve hit your limit 3 times in 30 days” and included a bar chart indicating the dates on which the complainant’s broadband was “At capacity”.
Issue
Two complainants, who understood their broadband usage had not been at capacity, challenged whether the claims were misleading and could be substantiated.
Response
TalkTalk Telecom Ltd said that they ran regular reports on customer’s usage of their network, in addition to the capacity of the customer’s internet product, to establish what capacity a customer’s line had versus the bandwidth used on such lines. They could then determine whether a customer’s usage was near to or exceeding capacity. TalkTalk said that ‘capacity’ referred to the maximum amount of data the line could provide at any particular time, and they believed it would be interpreted in that way by consumers. TalkTalk said that their customers had variable internet usage patterns and capacity requirements depending on their interests and lifestyle.
They said, however, that most broadband customers were unaware of what their specific broadband product was able to achieve and whether an alternative broadband product, such as Fibre, was more suited to their needs. They monitored the daily usage of data by their customers on a rolling 30-day basis. Customers who exceeded two-thirds of their broadband line capacity on two or more days within the 30-day period were flagged to receive an email, but TalkTalk did not send those emails out for every 30-day period. Rather, the emails were sent from time to time to help inform those customers who were most recently flagged in the previous 30-day period.
TalkTalk said that neither complainant had reached their broadband capacity, although both had neared that level. They said that the graph in ad (b) identifying days on which the recipient’s broadband usage was “At capacity” referred to days that they had exceeded the two-thirds limit. TalkTalk said that the language used in the emails sent to the complainants did not state that their broadband was definitely insufficient for their needs, but instead said that claims, such as “broadband may no longer be giving you the capacity you need” and ‘’your broadband can start to feel slow‘’, were conditional.
Assessment
Upheld
The ASA considered consumers would interpret the ads’ subject “your usage is affecting your broadband service. Let’s fix it” and headline claim “Your broadband isn’t keeping up with you” as an indication that the speed provided by their broadband deal was not sufficient to handle their internet usage because it had caused their line to reach its data capacity. We considered the ads’ references to fibre broadband such as “That’s why we recommend upgrading your line to fibre”, would be understood as an indication that upgrading from ADSL to fibre broadband would resolve the data capacity problem. We considered that impression was emphasised by personalisation of the emails, alongside other claims which spoke to recipients’ particular broadband usage. These included claims such as “We regularly look at how your broadband is performing to make sure you’re getting the best service” and “We’ve noticed that, at peak times, your current broadband may no longer be giving you the capacity you need”.
In the case of ad (b) this was further illustrated by a bar chart indicating the dates on which the complainant’s broadband was “At capacity”. However, we understood that neither complainants’ internet usage resulted in them reaching the maximum amount of data their lines could provide. Rather, the email was sent to customers who had reached two-thirds of their line’s bandwidth capacity twice in a 30-day period.
In the case of ad (b) we understood that the days on which the graph indicated the recipient was “At capacity” were days on which they had reached the two-thirds limit. We acknowledged that ad (b) included text at the bottom of the email which stated “30 day usage data: days reaching line limit calculated on your daily data usage and average customer data usage patterns, assumes more than 66% of line capacity used”. However, we did not consider this would override the overall impression of the ad that consumers had reached their data capacity.
We had not seen evidence that the complainants had reached their data capacity, therefore because the claims had not been substantiated, we concluded the ads were misleading. The ads breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation).
Action
The ads must not appear again in their current form. We told TalkTalk Telecom Ltd not to imply that their customers were closer to reaching their broadband data capacity than was actually the case.
