Claims on various pages of www.virginmedia.com, relating to a mobile phone tariff. A page which listed various tariffs included a section entitled "VIP Plus Tariff". Text stated, "Unlimited data". Another page which listed various "exclusive tariffs" for Virgin Media TV, broadband and home phone customers included a "VIP" tariff. The tariff included "Unlimited data" as one of its features. A third page included a table of SIM-only tariffs. The table showed that for a monthly cost of £15, the tariff would include 3 GB of data, and that for a monthly cost of £20, the tariff would include "Unlimited" data. At the bottom of each page, small print entitled "General" stated, "... You should expect speeds delivered up to 384kbps (3G), actual speeds experienced may be higher or lower and will vary by device and location ...".
Seven complainants, who understood that a data cap applied to the "unlimited data" tariffs, challenged whether the claim "unlimited data" was misleading and could be substantiated.
Virgin Media Ltd said the tariff allowed customers to access the internet, without any restrictions on speed, for the initial 3.5 GB of data usage per month. Once a customer had exceeded that amount of data, the speed at which they were able to access the internet was restricted to 384 kbit/s, which they said was almost twice the understood definition for 3 G of 200 kbit/s.
They said within all of their advertising, whenever they referred to "unlimited data" in connection with their mobile tariffs, they included an explanation within the small print that customers should expect speeds of up to 384 kbit/s. They said the restriction imposed on customers was moderate in respect of the service being advertised.
They noted that the body copy of the ad did not make any reference to internet speeds, and said that Virgin Mobile customers were never prevented from accessing the internet, no matter how much data they used. They therefore maintained that access to data for any customer was entirely unlimited. They said, where a customer exceeded 3.5 GB in any 30-day period, they would still be able to use the internet on their device at 3 G speeds. They said that 2% of Virgin Media customers ever reached the limit in a 30-day period, which they considered was a tiny minority. They said that the customers using more than 3.5 GB of data each month would be those customers who would be more aware of the advertised expected speed, and that the average consumer would therefore not have been misled.
They said customers did not incur any additional charges, and they believed the limitations of the service were moderate, allowing normal use of any mobile device attached to the internet. They said the small print detailed the expected speeds, which would provide the average consumer with a complete understanding of the service they would receive, i.e. unlimited data at 3 G speeds.
CAP guidance made clear that unlimited claims were likely to be acceptable if provider limitations that affected the speed or usage of the service were moderate only and were clearly explained in the marketing communication.
Within the CAP guidance, a section on "moderate restrictions" explained that limitations imposed on the speed or usage of a service should not prevent or hinder users from carrying out lawful online activities at or close to the consumer's normal connection speed.
Recent Ofcom research, published November 2014, on mobile broadband speeds, indicated that the average 3 G speed delivered to smartphones was 6.1Mbit/s, and that that speed did not vary significantly between providers. The ASA therefore considered that Virgin customers were likely to receive similar average speeds to that, rather than the "384kbps" referred to in the small print.
Given the speeds we understood consumers were likely to achieve before the restriction, we considered that they were likely to notice the drop in speeds once the restriction was applied, as had a number of the complainants. We considered that a reduction in speed from an average we understood to be approximately 6 Mbit/s to 384 kbit/s once the limit was reached, was more than a moderate reduction.
Because we considered the limitation imposed on speeds to be more than moderate, we concluded that the claim "unlimited data" was misleading.
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), and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
The ad must not appear again in its current form. We told Virgin Media Ltd not to claim that a service was 'unlimited' if the limitations that affected the speed or usage of the service were more than moderate.