A press ad for O2, seen in April 2020, displayed the headline “Get the Samsung S20 5G on our lowest ever unlimited tariff” in white text on a blue background. Smaller text beneath stated “Just £51.50 a month” and further text below that stated, “On the network voted Britain’s Best for Coverage”. An image of the phone was shown below with a round sticker to the left stating “75% said that they got a better deal with us”. The bottom-right corner of the page showed the Uswitch logo and small text “Uswitch Best Network Coverage Winner 2020”.
EE, who believed comparative claims about network coverage should be based on objective technical evidence rather than consumer surveys, challenged whether the claim "On the network voted Britain’s Best for Coverage" was misleading.
Telefonica UK Ltd t/a O2 disagreed with EE’s view that network coverage could only be measured using objective, technical measures. O2 acknowledged that technical tests could be carried out to assess the strength of coverage to a certain (but not definitive) extent, which would produce results for the strength of coverage in certain areas, during certain times and on certain handsets (all factors determined by the party carrying out the testing). Such results though, were likely to be different the following day depending on weather, traffic, difference in population in that area at that time, and a whole range of other variable factors. However, O2 said that network coverage was experienced by individual customers on a daily basis and such experiences varied depending on areas, times and handsets.
O2 explained that it was widely accepted in the telecoms industry that objective, technical tests held some value in providing a broad assessment of performance. However, O2 said that they did not provide robust and definitive results of what each consumer would experience. O2 argued that subjective consumer experience of network coverage was real and valid.
O2 provided further details about the uSwitch survey. O2 stated that the overall base size for the survey was 12,000 UK adults, made up of customers from across all UK mobile network operators (MNO) and mobile virtual network operators (MVNO), with mobile (at least 10,000) and/or broadband (at least 10,000) customers and those without either service.
O2 confirmed that the question was specific to mobile phone networks rather than fixed line. The question asked was “How satisfied are you with how your mobile phone network performs on each of the following?”. Participants were then asked to provide a rating from “Very satisfied” to “Very dissatisfied”, and the network with the highest difference between positive and negative weighted response was the winner.O2 added that from a coverage perspective, customers on an O2 MVNO received the same level of coverage as O2 customers because it operated on the same network, albeit the same variable factors applied to receiving such coverage, such as weather, time of day, device, location, etc., in the same way that O2 (or any MNO) customers in different locations would not necessarily receive the same level of coverage solely by virtue of being on the same network. O2 added that it could, however, confidently predict that an O2 MVNO customer would receive the exact same level of coverage as an O2 customer if both customers were sat next to each other at the same time of day, carrying out the same activity using the same mobile device. O2 believed that the difference in survey score for itself and its MVNOs reinforced the fact that coverage was entirely subjective and not limited to which specific network the customer received coverage from. O2 explained that the same principle applied to any MVNO on EE, Vodafone or Three.
O2 said they did not believe they were misleading customers by stating that they were awarded or voted the uSwitch best network for coverage. O2 believed that was reinforced by the fact that they had won the award for four years in a row, had made extensive advertising claims in respect of the award during that time, and had not received any consumer complaints in respect of the same. O2 added that the uSwitch logo and small print had been included to reinforce the legitimacy, accuracy and factual nature of the claim. They considered that the use of terms such as “awarded” or “voted” made it clear that it was a subjective assessment. They did not consider that consumers’ views on good network coverage, which they felt were real and valid experiences, should be dismissed on the basis of, or in favour of, the inherently subjective results of technical tests carried out by third parties that used their own methodologies; determined their own variables; and did not – in any event – produce objective and definitive results in respect of network coverage and experience.
O2 did not consider that the claim was comparative and did not believe it was an unqualified superlative claim. They explained that they had not sought to compare itself with any other networks but made clear that it was “voted” Britain’s best network for coverage. O2 believed that qualified the claim and the inclusion of the uSwitch logo highlighted the basis of the claim. O2 believed the challenged claim was different to that if O2 had claimed to have “the best coverage”.
However, in the event the claim was comparative, they believed it was a “superiority claim” rather than an “objective superiority claim”. O2 stated that there was nothing in the claim to suggest that it was objective and therefore they should not be required to objectively compare one or more material features. O2 understood that “superiority claims” only needed to be supported by evidence and they believed that O2 had satisfied that requirement.
In any event, O2 believed that even if an objective comparison was required in respect of the claim, the test would be satisfied. O2 considered that the objective claim would have been that consumers voted that they were either “satisfied” or “very satisfied” with the coverage provided by the O2 network, not that O2 was objectively the best network for coverage. O2 believed the survey results provided the objective evidence of consumers’ views.
O2 added that awards based on consumer views were regularly advertised across all industries and that by introducing a test of objectivity and applying the requirements of comparative claims into these awards would undermine the experiences of consumers.
The ASA considered that consumers would interpret the claim “On the network voted Britain’s Best for Coverage” with the uSwitch logo clearly shown at the bottom right of the ad to mean that O2 had won the best network for coverage category at the uSwitch awards. Because it claimed that O2 had been found to be the “best” we considered that it would be seen as a comparative claim with the rest of the market and that consumers would expect it to be supported by objective data.
CAP Code rule 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. required that comparisons with competitors must objectively compare one or more material, relevant, verifiable and representative feature of those products. We therefore considered that the basis of the comparison needed to involve an objective component beyond solely customers’ subjective perceptions of their own networks. As such, we expected to see evidence that a range of networks had been rated based on a robustly-conducted comparison of a range of appropriate, relevant and objective performance measures and that O2 had received the highest score of all the rated networks.
We therefore evaluated whether the methodology on which the award was based was sufficient to support the claim “On the network voted Britain’s Best for Coverage” and the requirement to be objective. We understood that the award was based on a consumer survey of 12,000 UK adults from the different networks who were asked about their specific experience on their network. Participants without mobile or broadband were excluded from those specific questions and the data was reviewed to exclude rushed survey results. The data was weighted to nationally-representative statistics from the Office for National Statistic’s population estimates for UK adults aged 18 and above.
We noted that the methodology only required consumers to appraise their own provider in relation to coverage. They were asked “How satisfied are you with how your mobile phone network performs on each of the following?” with one of the options being “coverage”. We considered that the survey question was very broad and it was unclear, for example, what the criteria were for rating “performance”, or how “coverage” was defined. We noted that consumers were likely to have differing understandings of what constituted good coverage, depending on their typical usage habits. Furthermore, we considered that it was unlikely that participants would have an insight into how their own network compared against all others on the market when rating the coverage they experienced. Overall we were concerned that the data showed only highly subjective experiences and it was not clear how responses could be compared in a meaningful way to come to a view that one network was the “best”. The comparative nature of the claim was required by the CAP Code to include an objective component, and it was unclear to us how a consumer perception survey alone, based on respondents’ subjective opinion of their own network, would deliver such data.
Because consumers would expect, and the Code required, the claim “on the network voted Britain’s Best for Coverage” to be based on an objective comparison of O2’s network coverage with their competitors when that was not the case, we concluded that it was misleading and breached the Code.
The ad 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), 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. 3.35 3.35 They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price. (Comparisons with identifiable competitors).
The ad must not appear again in the form complained of. We told Telefonica UK Ltd t/a O2 to ensure that that they held adequate and objective evidence to support comparative claims.