A website, regional newspaper ad, paid-for Facebook post and paid-for ad on the uSwitch price comparison website, for Vodafone “Unlimited” data plans:
a. A page on Vodafone’s website, www.vodafone.co.uk, seen on 27 August 2019, relating to three mobile data plans, was headed “New Unlimited Data Plan Imagine a world without limits …”. Further text stated “It’s time to be Unlimited It’s true – our Unlimited data plans really do give you unlimited data, minutes and texts – from only £23 a month. No limits, no worries Worrying about your data allowance will be a thing of the past. Total phone freedom Do what you love for as long as you like, without having to hunt for Wi-Fi. Welcome to your Unlimited world, on our award-winning network”.
Under the subheading “Our Unlimited data plans” text stated “All our Unlimited data plans are available with 5G, and each is built to match however you use your data”, followed by three boxes which provided information about three different plans: “Unlimited Lite”; “Unlimited”; and “Unlimited Max”. Text in the “Unlimited Lite” box stated “Good for browsing, catching up on social media and streaming music. Browsing and social media Online messaging and emailing High-quality music streaming from £23 a month”. Small linked text stated “Maximum download speed 2mbps”. Text in the “Unlimited” box stated “Great for watching movies on-the-go, plus everything Lite can do. Streaming HD quality TV and movies Share photos and make video calls Downloading and updating apps Gaming on-the-go from £26 a month”. Small linked text stated “Maximum download speed from 10mbps”.
Clicking on the linked text in both boxes brought up a pop-up box headed “Mobile speed explained”. Text stated “How much speed do you need? It depends on how you use your mobile data. To help you decide, here are two examples of using data on each plan: Downloading a 4MB song takes … Unlimited – 3 seconds Unlimited Lite – Under 15 seconds The recommended streaming quality for each plan is: … Unlimited – HD Unlimited Lite – Not recommended (Video might be slower to load, buffering may occur)”.
A section further down the main web page, headed “Your questions answered” included the question and answer “Is unlimited data really unlimited No matter what Unlimited plan you choose, you’ll have unlimited data to use in the UK. Our plans come with different maximum mobile data speeds, to match how you use your data. Our Unlimited Lite plan has a maximum mobile data speeds[sic] of 2Mbps, Unlimited has a maximum speed of 10 Mbps and our Unlimited Max plans [sic] let you access our 5G network at full speed”.
b. The regional newspaper ad, published on 8 August 2019, stated “Be Unlimited” and “From £23 a month with our new unlimited data plans”. Small print at the bottom of the ad included “Unlimited data: available on Unlimited Lite Plan (max download/upload speed of 2Mbps), Unlimited Plan (max download/upload speeds of 10Mbps) & Unlimited Max Plan Speed and coverage may vary by a number of factors. Terms at https://www.vodafone.co.uk/unlimited-data-plans/”.
c. The paid-for Facebook post, seen 13 August 2019, featured a large image with the text “Be Unlimited with our Unlimited data plans”. Text above the image stated “Forget hunting for Wi-Fi. Get even more from your phone with our 5G ready Unlimited plans – from just £23 a month”. Text underneath the image stated “Unlimited Data Deals”.
d. The paid-for uSwitch ad, seen 29 August 2019, showed summary details of a Vodafone SIM-only deal in a comparison table. Text stated that the plan had “Unlimited” minutes, texts and data for £23 per month, on 5G. Clicking a link titled “See Deal” took website visitors to a web page which repeated the same information. Additional text stated “Speed 2 Mbps average”, next to an ‘information’ icon. Clicking on the icon brought up a pop-up box which stated “Speed Unlimited Lite Vodafone’s unlimited lite plan has a maximum download / upload speed of 2 Mbps. This means it’s great for browsing online, catching up on social media and streaming music”.
Virgin Media and Hutchison 3G UK Ltd (Three) challenged whether the use of the term “Unlimited” and the reference to 5G in relation to the “Unlimited Lite” and “Unlimited” plans were misleading, and whether the ads presented the restrictions to speeds on those plans sufficiently clearly.
Vodafone Ltd referred to CAP Advertising Guidance on “unlimited” claims, which stated that: ads should not mislead consumers about the benefits or results that might be expected from an “unlimited” product, or about the existence or impact of any factors under the provider’s control that were likely to affect its usage; and that “unlimited” claims were likely to be acceptable for services that were subject to provider-imposed limitations if they did not restrict or limit a service in a manner contrary to consumers’ expectations of an “unlimited” service.
Vodafone said the amount of data available on their plans was truly unlimited and since the plans were launched in July 2019, no legitimate users had incurred any additional charges or suspension of service, and they had not recorded any illegitimate use. Vodafone thought that the speed limits on the two plans were likely to be defined as provider-imposed limitations that could affect speed or usage of a service, but they believed those speed restrictions were moderate and in line with CAP’s guidance, based on the findings of customer research carried out prior to the plans being launched. Between February and May 2019 Vodafone trialled the plans on 500 Pay Monthly customers.
The Unlimited Lite Plan was marketed as perfect for light browsing and streaming (e.g. checking emails, social media and Spotify), and the Unlimited Plan was marketed as perfect for browsing, social media and streaming video. Customers chose the plan which most suited their needs and their usage behaviours were then closely monitored. At the end of the trial Vodafone concluded that an unlimited data allowance at a capped speed provided peace of mind to consumers because they could use as much data as they needed without worrying about unexpected bills. They had also engaged a market research company to carry out a further survey following the launch of the plans. They said the survey showed that customers made informed and considered decisions before choosing their plan and that they were happy with their choices as their expectations of unlimited data had been met. They provided a copy of the survey report.
Vodafone said the trial and post-launch research demonstrated that the limitations on speed were ones that could reasonably be considered to be moderate only; that was mainly because their website and other point of sale materials clearly described the types of activities that could be undertaken at the speeds applicable to each unlimited plan. They said browsing Facebook, including chat, required 0.032 Mbps (according to Facebook), and that Spotify recommended 0.16 Mbps to enjoy high quality music streaming or 0.36 Mbps to enjoy very high quality music streaming. Additionally, Ofcom described 2 Mbps as fast enough to browse the internet and watch glitch-free mobile video. Vodafone therefore considered that the 2 Mbps cap on the Unlimited Lite plan was moderate as consumers could enjoy browsing social media, general online browsing, and music streaming, as described in their marketing communications. They said that customers across their Unlimited Lite and Unlimited plans used significantly more data on average compared with the amount of data they used previously when on data-limited plans; that was proof that customers were able to take advantage of their new plan with the moderate capping in place.
Vodafone said they had taken into account previous ASA rulings which considered whether or not the restrictions placed on “unlimited” plans were moderate. They believed those rulings showed that the ASA’s concern had been about service providers unequally imposing speed restrictions on consumers who had subscribed to unlimited plans. Vodafone also referred to guidance from the Body of European Regulators for Electronic Communications (BEREC) which related to the EU’s Regulation on open Internet access. They highlighted that the guidance said the Regulation allowed end-users to agree with providers of internet access services on tariffs for specific data volumes and speeds. It also recognised ‘speed tiering’ as an integral feature for 3G, 4G and 5G services, as it allowed operators to provide services in the most efficient manner. Vodafone believed their Unlimited plans were fully compliant with that legislation because their customers were fully informed of the maximum speed limits on the plans before entering into a contract. With regard to the website, ad (a), Vodafone said that when website visitors scrolled down the page they were presented with information about the three “Unlimited” plans side-by-side, which meant they could easily compare the different features and characteristics of the plans. That included the maximum speed limits which were set out prominently in each of the boxes and underlined to indicate that they were links to further information. Those links brought up a pop-up box titled “Mobile speed explained” which described how long it would take to download a 4 Mb song on each plan and explained the recommended streaming quality for each plan, including that video streaming was not recommended on the Unlimited Lite plan.
Website visitors who followed one of the links to see options for either SIM-only or handset plans were again presented with information about the maximum download speeds once they had selected a specific plan. They said that consumers were therefore presented with clear and prominent information about the maximum speeds at every point in their online journey and their purchase journey. Vodafone highlighted that they had updated the website after 27 August 2019, adding the wording “Check out our terms before you decide which Unlimited data plan is right for you”, with a link to the full terms and conditions, near the top of the web page so that it was visible to consumers without them needing to scroll down the page. They had also updated the “Mobile speed explained” page to include a more detailed explanation, in plain English, of what they meant by speed and what activities users could expect to perform on each plan. Those activities were based on real user experience. Vodafone believed that the small print in ad (b), the press ad, was sufficiently prominent and was in line with both ASA guidance on small print and the industry standard. However, they said they were willing to reposition the wording relating to the maximum download speeds to the start of the small print, and to increase the size of the font. Vodafone acknowledged that the Facebook ad, ad (c), did not include information about the speed restrictions at all. They said that as a digital display ad space was limited and as a result the small print was not placed properly. They therefore would not use the ad again until they had found a solution to include similar small print to that in ad (b). With regard to ad (d), Vodafone said they did not have any control over how the information was presented because uSwitch had restrictions around the display of small print. They said, however, that they were working with uSwitch to ensure their small print was displayed prominently upfront.
Vodafone explained that according to Ofcom the average download speed of 4G was likely to be between 8 to 10 Mbps. They said that even though customers on the Unlimited Lite plan were limited to 2 Mbps, they were still using Vodafone’s 4G technology, or 5G if their phone was 5G-ready and in a 5G area. They explained that their Radio Base Stations were made up of separate 2G, 3G, 4G and 5G stations which were located on the same sites and worked together. Even though the speed of Unlimited Lite and Unlimited customers was limited, they weren’t put down to a ‘lower G’. They said they would add a new tab in their FAQ section and information to their small print to address any concern consumers may have about that. Vodafone said the customer experience on 5G was superior to other technologies in many ways other than speed. 5G provided more reliable call and data connections which in practice meant an Unlimited Lite customer with a 5G phone in a 5G area would be better connected in busy places like train stations and football matches. 5G also helped to achieve lower latency which in practice meant that an Unlimited Lite customer with a 5G phone in a 5G area would experience less lag. They believed that even though customers on Unlimited Lite and Unlimited plans would have their speed restricted they would still have an enhanced experience with 5G. Their plans allowed consumers who wanted the other advantages of 5G while controlling their monthly spend to trade the benefit of speed for cost, while also maintaining the benefit of unlimited data. They acknowledged that it would be misleading to advertise their Unlimited plans as available on 5G without clearly indicating the speed restrictions, but as they did make those restrictions clear they believed consumers would not be misled.
Ad (a) was headed “New Unlimited Data Plans”, ad (b) featured the prominent text “Be Unlimited” and additional large text which stated “with our new unlimited data plans”, and ad (c) featured the prominent text “Be Unlimited”, immediately followed by the text “with our Unlimited data plans”. Ad (d), which was a ‘promoted’ deal on a comparison website, listed the key features of a plan priced at £23 per month, including “Unlimited data”.
The ASA considered consumers would understand from the prominent claims in ads (a), (b) and (c) that Vodafone offered a range of mobile plans which included unlimited amounts of data, and from ad (d) that it offered a plan with “Unlimited data” at a price of £23 per month. We considered that consumers were likely to expect that services, or features of services, described as “unlimited” were not unduly limited by a fair-use policy or the like, and where such policies existed the restrictions could reasonably be considered to be moderate only.
All three ‘Unlimited’-branded plans included unlimited minutes, texts and data. There were no limitations on data usage and therefore no policies which imposed restrictions on individual users for exceeding a specific amount of data. Two of the plans were subject to speed limitations: the Unlimited Lite plan, which cost £23 per month, had a maximum download speed of 2 Mbps; and the Unlimited plan, which cost £26 per month, had a maximum download speed of 10 Mbps. However, those speed restrictions applied to all customers on the plans. Therefore, because there were no policies which imposed restrictions on individual users, we did not need to assess whether any such restrictions were moderate or not.
Virgin Media and Three had highlighted that the maximum download speeds for the two plans were significantly below the average speeds that could be achieved on 5G and 4G (Vodafone stated on its website that it expected to deliver average 5G speeds of 150 to 200 Mbps and that it delivered average 4G speeds of 25 to 35 Mbps). The complainants therefore believed it was misleading to refer to the plans as “Unlimited” when the speeds which were delivered to consumers were significantly below the average speeds achievable on Vodafone via 4G and 5G technologies. Given the length of time that 4G had been the standard technology used in mobile telephony, we considered that consumers would expect that mobile plans would be delivered via 4G, at 4G speeds, unless otherwise stated. We considered consumers would have a general idea of the types of activities that could be undertaken effectively on 4G, which included streaming video.
We understood that the speed restrictions imposed on the Unlimited plan, and particularly the Unlimited Lite plan, were such that the quality of some of those online activities would be affected. We therefore considered that the speed restrictions imposed on the plans were significant limitations to the service which must be made clear to consumers in ads. We understood that in addition to faster speeds, 5G also provided other benefits over 4G. In particular, 5G provided greater reliability and reduced latency. While many consumers did not yet have access to 5G (either because their mobile device was not compatible with the technology or because they were in areas where 5G was not yet available), we understood that those Unlimited Lite and Unlimited plan customers who could access 5G would experience those benefits even if they were not getting 5G speeds. However, we considered that consumers were likely to primarily associate 5G with significantly faster speeds. We therefore considered that consumers would expect that plans which were specifically advertised as available on 5G would be provided via 5G (where device and location allowed) and with 5G speeds, unless references to 5G were immediately qualified to clearly explain that the plans would not deliver 5G speeds. We therefore assessed each of the ads on that basis.
The top section of ad (a) described the Unlimited plans in general terms, followed by the “Our Unlimited data plans” section which provided information about each of the three plans. Text above the boxes relating to each of the plans stated “All our Unlimited data plans are available with 5G …”. We considered that implied that all three plans would be available at 5G speeds when the Unlimited Lite and Unlimited plans were not. On that basis we concluded that ad (a) was misleading to consumers. Notwithstanding our concern in relation to that reference to 5G, we considered the 5G logo which appeared in the box relating to the Unlimited Max plan was not misleading to consumers, because there was no speed restriction on that plan.
We further considered that the summarised information in each box about the particular types of activities that each plan was good for, the linked text which stated the maximum speed relevant to the plan, and the information which appeared when website visitors clicked on that linked text, would have made the restrictions to the Unlimited Lite and Unlimited plans sufficiently clear to consumers in the absence of the “All our Unlimited data plans are available with 5G …” text. Ad (b), the press ad, did not refer to the plan’s availability on 5G, but we considered that the text “From £23 a month with our new unlimited data plans” implied that there was, at the least, one plan available for £23 a month which would be provided with 4G speeds. Information was provided in small print about the maximum download speeds imposed on the Unlimited Lite and Unlimited plans, but we considered the text was not sufficiently prominent that consumers would understand that speed restrictions applied to the plans. We therefore concluded that ad (b) was misleading. Ad (c), the Facebook ad, stated “… Get even more from your phone with our 5G ready Unlimited plans – from just £23 a month” and did not include information about the maximum speeds. We considered consumers would expect that all the Unlimited plans offered by Vodafone, including the plan priced at £23, would deliver 5G speeds when 5G became available. Because that was not the case, we concluded the ad was misleading. The paid-for ad on uSwitch’s website, ad (d), related to an Unlimited plan priced at £23 per month, and included a yellow box with the text “5G” in it. We considered consumers would therefore understand that the advertised plan, which we understood to be the Unlimited Lite plan, would be delivered at 5G speeds (device and location allowing). Because that was not the case, we concluded the ad was misleading.
We also considered that the text one and two clicks away which referenced an “average” or “maximum” speed of 2 Mbps was not sufficiently prominent, and that the claim “Speed 2 Mbps average” did not accurately reflect that 2 Mbps was the maximum, rather than average, speed of the service. We considered that it was in principle acceptable for the ads to use the term “Unlimited” in relation to the Unlimited Lite and Unlimited plans. However, because the ads either implied that a plan or plans were available at 4G speeds without making the speed restrictions sufficiently clear, or implied that a plan or plans were available at 5G speeds when that was not the case, all four ads breached the Code. Ads (a), (b), (c) and (d) 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), and 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. and 3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualification).
The ads must not appear again in their current forms. We told Vodafone Ltd to ensure that future ads relating to the Unlimited Lite and Unlimited plans (either explicitly or implicitly) clearly stated the speed restrictions which applied to those plans. We told them to ensure that any references to 5G which would be understood by consumers as relating to the Unlimited Lite and Unlimited plans were immediately qualified to explain clearly that the plans would not deliver 5G speeds.