Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A national press ad and a website (www.vodafone.co.uk) for mobile phone network provider Vodafone:
a. Text in the press ad stated "Every ‘We've found your dog’ ‘We've found your wallet ‘We've found you a donor’ matters ... Many people on the UK's transplant waiting list never go anywhere without their mobile; in case they get that call that could change their life. We're unbeatable at connecting your calls. Because to us, whether life changing or not, every call matters". Small print at the bottom of the ad stated "Based on call connection performance across 26 towns and cities vs. three main competitors in April 2014 by Vodafone Group. For verification see vodafone.co.uk/network".
b. A page titled "We're building our strongest ever network" on the website featured a banner with text that stated "Our network Unbeatable at connecting calls ...". Text in the section headed "Performance you can rely on" stated "Vodafone is: Unbeatable at connecting your calls. Unbeatable at keeping your calls connected ... Note: Call connection was measured across 26 towns and cities vs. three main competitors in April 2014 by Vodafone". The ad contained a link to a PDF document titled "Find out more about our call performance claims".
Hutchison 3G UK Ltd, trading as Three, challenged whether the following claims were misleading and could be substantiated:
1. "we're unbeatable at connecting your calls" and similar claims in ads (a) and (b); and
2. "unbeatable at keeping your calls connected" in ad (b).
1. & 2. Vodafone Ltd said they had made a top parity claim which they felt was acceptable because no other mobile network operator (MNO) could beat them on performance for call connection or keeping calls connected. They did not believe the ads implied a stronger claim, such as a superiority claim and, therefore, consumers were unlikely to interpret the claims to mean that Vodafone performed the best in those two areas.
Vodafone explained the claims were based on their own call performance data as well as that of Three, O2 and EE. The data had been collected in November 2013 and April 2014 by an independent third party across 26 towns and cities in the UK, which then compared Vodafone’s performance against that of those three MNOs. They considered the cities and towns covered in the sample helped to ensure a true representation of call connection and dropped calls performance across the UK. That data was then subjected to a statistical analysis by a separate independent organisation to prove or disprove Vodafone’s two hypotheses: (1) their call connection rates were not significantly different to other MNOs; and (2) their dropped call rates were significantly different to other MNOs.
Vodafone classed a successful call as one that was made or received. However, if the call went through to a device in an area with no signal, or if a call was attempted from a mobile in an area with no signal, they counted it as an unsuccessful call. They provided the results of their testing which included only calls made or received between fixed landlines and mobile phones. On each occasion, the testing was carried out over 25 days, which equated to approximately 3,000 call samples or 100 hours of voice measurements per operator. They said the methodology adhered to the standards set by the European Telecommunications Standards Institute (ETSI) which produced globally applicable standards for Information and Communications Technologies and was recognised by the EU as a European Standards Organisation.
Vodafone noted that Ofcom’s report “Consumer experiences of mobile phone calls”, published in August 2014, stated that the results it quoted were based on information provided by MNOs from network performance counters which sat on radio masts/sites. Ofcom acknowledged that there were limitations with that method of reporting and that those results under-reflected the true customer experience. Vodafone also said research on network performance varied and that different methodologies could produce different results. They felt that until such time that a common industry approach was used, each MNO would seek to rely on research which better reflected its network capabilities. Notwithstanding that, Vodafone were satisfied that in adhering to ETSI standards and the independent statistical analysis of their data, their substantiation was sufficiently robust to support their top parity claims. Therefore, they considered the claims had been substantiated and were not misleading.
1. & 2. The ASA considered consumers were likely to interpret the claims as top parity ones which meant that Vodafone was as good as other MNOs in respect of performance on call connection and dropped calls. We expected to see robust evidence to support the claims.
We sought advice from Ofcom on Vodafone’s evidence and they considered the methodology used was reasonable and sound; they did not have concerns about the approach taken by Vodafone in its collection of data about call connection and dropped call performance. Similarly, they had no concerns about the way in which the statistical analysis had been conducted. However, they were concerned that the cities, towns and routes used to collect the sample appeared to be limited and they noted that it excluded large areas of the UK.
We understood the testing and methodology adhered to a recognised standard for Vodafone’s industry and that it had been collected by an independent third party. We acknowledged it had been statistically analysed and we considered Vodafone had taken a robust approach to its testing. However, we had concerns about whether the 26 cities and towns from which the sample had been collected represented Vodafone’s true coverage of the UK and, therefore, its call performance. We noted there were no locations in Wales or Northern Ireland and that the two Scottish locations were approximately ten miles away from each other. We therefore considered that most of Scotland had been excluded from the sample. We noted that the majority of locations were in the West Midlands, North West of England, West Yorkshire and London, which left the South East, South West and North East of England excluded.
Ad (a) was a national press ad that referred to the UK’s transplant list and that those on the transplant list never went “anywhere” without their phones. Ad (b), which appeared on the Vodafone website, referred to how they were investing in their network ensuring it was “… suitable for ... the everyday services people rely on up and down the country”. In that context, we considered consumers were likely to interpret the claims as referring to Vodafone’s performance across the UK, despite the qualification given in the ads. Given that large geographical areas of the UK were omitted from the sample, we considered it was insufficiently widespread to be considered a true representation of UK consumers’ experience of call connection and dropped calls. Furthermore, because we considered the ads created the overall impression that the claims related to Vodafone’s performance across the UK, we considered the qualification contradicted rather than clarified the ads. For the reasons given above, we considered Vodafone’s substantiation was insufficient to support their top parity claims. We therefore concluded the ads had not been substantiated and were misleading.
Ad (a) and ad (b) 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 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. (Comparisons with Identifiable Competitors).
The ads must not appear again in their current form. We told Vodafone Ltd not to imply they performed as well as other mobile network operators on call connection and dropped calls performance across the UK coverage unless they held suitable substantiation.