Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A website ad, a national press ad and a TV ad, all for EE Ltd, seen between April and June 2016:
a. The home page of www.ee.co.uk stated "It's official. Our 4G network is 50% faster than any other". On another page, headed "WHY EE - Reasons to choose the EE network", text stated "75% faster than Three ... Fastest 4G experience - EE's 4G network is ... more than 70% faster than O2 and Three". Small print on both pages stated "... Speedtest Intelligence Portal & Aggregated Data 01.04.15-30.09.15 ...".
b. A press ad showed a phone handset. Text stated "With the 4G network that's 50% faster than O2, Vodafone and Three".
c. A TV ad stated "EE's 4G network is 50% faster than O2, Vodafone and Three". On-screen text stated "Based on Ookla's Speedtest Intelligence Portal & Aggregated Data April-Sept '15".
Issue
The ASA received complaints from Three and two members of the public.
1. Three challenged whether the claim in ad (a) “It’s official. Our 4G network is 50% faster than any other” was misleading and could be substantiated.
2. Three and the two members of the public challenged whether the claim in ads (b) and (c) that EE's 4G network was 50% faster than O2, Vodafone and Three (and the claims in ad (a) that EE's 4G network was 75% faster than Three and 70% faster than O2 and Three) were misleading and could be substantiated.
Response
1. & 2. EE said the claim was based on an annual award last given in October 2015 by Ookla, a third-party organisation that collected and analysed data from speed tests by consumers across the UK using, in this case, mobile broadband. EE acknowledged that Ookla's data was based on users choosing to carry out speed tests using their own equipment and in a location of their choice, but believed Ookla's set-up enabled them to remain independent of any particular provider and ensured that their testing incorporated safeguards which meant the results were representative of the performance a typical smartphone or tablet user would obtain. EE said Ookla would announce their next award in Autumn 2016. Until then, they believed they were entitled to continue to make a claim based on the 2015 award.
EE said, where suitable, they had included in their ads Ookla's award ribbon, the Ookla "Fastest Network Award 2015" logo and a footnote explaining the data the award was based on, which was publicly available, and the dates of when testing took place. They believed the ads made it clear that the claim was based on the award, the data on which the award was based and the dates between which it was gathered.
In relation to ad (a), which contained the "It's official” wording, they said they had added Ookla’s award ribbon alongside the claim, to help make it clear to consumers that the claim was based on an annual Ookla award. They said any award of this kind would be based on an analysis of data sourced over a period of time and that rankings represented a snapshot at the point in time when the report was made. They believed the small print made the dates of the testing sufficiently clear. They said "It's official” was not intended to imply anything more than to explain that the claim related to an award rather than a statement of opinion, and that the ad explained the criteria against which the award was given, the supporting data for which was publicly available. They did not believe consumers had been misled regarding the basis of the claim.
In relation to ad (c), Clearcast said they had seen evidence from EE for the speed comparison claim. They had obtained confirmation that the Ookla data was the most recently obtained data and approved the ad for transmission on that basis.
Assessment
1. Not upheld
The ASA noted that the claim in ad (a) (part 1) "IT'S OFFICIAL - Our 4G network is 50% faster than any other" appeared immediately alongside the Ookla award logo, which contained the text "SPEEDTEST by OOKLA - UK'S FASTEST MOBILE NETWORK", and that further explanatory text appeared below. The logo also appeared again further down the page, level with the text “Fastest Mobile Network Award Winner ...”. Underneath the logo, smaller, but still legible, explanatory text stated "Speedtest.net's Fastest Mobile Network Award winner 2015, showing average 4G download speeds for UK as a whole ... Based on Ookla's Speedtest Intelligence Portal & Aggregated Data 01.04.15-30.09.15". In that context, we considered consumers would understand that Ookla had made an annual speedtest award following their own testing over a five-month period in 2015; that EE's 4G network had been found to be 50% faster than their competitors; and that EE had been declared the winner.
We understood that EE had won the 2015 Ookla speedtest award that was based on testing by Ookla which involved a large number of tests across the UK. From the tests submitted it showed that, on average, EE's 4G network was generally at least 50% faster than the other providers, during the defined test period. Because we considered that consumers reading the ad were likely to understand from the context in which the claim appeared that it related to an Ookla award based on speedtest data from a set period in 2015, and that the claim might not necessarily still be accurate in subsequent testing periods, we concluded that consumers were unlikely to be misled by the claim.
On this point we investigated ad (a) under CAP Code (Edition 12) rules 3.1 3.1 Advertisements 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 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors) and 3.50 3.50 Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation. (Endorsements and testimonials), but did not find it in breach.
2. Upheld
We considered consumers were likely to interpret the claims in ad (a) (part 2) “79% faster than O2 - 75% faster than Three - 50% faster than Vodafone” and “Fastest 4G experience - EE’s 4G network is 50% faster than Vodafone and more than 70% faster than O2 and Three. EE gives you the best network experience for downloading videos, music and content, whenever you want it” to mean that, at the time the ad was seen, EE was the fastest mobile provider and that their network was at least 50% faster than their competitors. We noted that text at the bottom of the page explained that the claim was based on testing done by Ookla over a set period in 2015. However, the text was not linked to the claim; it was in small type; and consumers had to scroll to the bottom of the page to view it. Also, the page did not feature the Ookla logo. We considered therefore that the text was not sufficiently prominent to correct the initial impression that the claim was accurate when the ad was seen.
In ad (b), text stated "With the 4G network that's 50% faster than O2, Vodafone and Three", but there was no additional text explaining the basis of the claim in the body of the ad. In that context, we considered consumers would interpret the claim to mean that EE's 4G mobile network was 50% faster than O2, Vodafone and Three at the time the ad was seen. While we acknowledged that unlinked small print at the bottom of the ad explained that the claim was based on testing done by Ookla over a set period in 2015, we considered it could be easily missed. We considered therefore that the text was not sufficiently prominent to correct the initial impression that the claim was accurate when the ad was seen.
In relation to ad (c), the claim stated "EE's 4G network is 50% faster than O2, Vodafone and Three". We considered consumers would interpret the claim to mean that EE's 4G mobile network was 50% faster than that of O2, Vodafone and Three at the time the ad was seen. We acknowledged that on-screen text fairly early on in the ad explained that the claim was based on testing by a third party during specific months in 2015. However, the “SPEEDTEST BY OOKLA” text and logo did not appear until the very end of the ad on a different block of colour and was separated from the main content of the ad. Furthermore, neither the on-screen text nor the “SPEEDTEST BY OOKLA” logo explained that the claims were based on an annual award. We considered therefore that the text was not sufficiently prominent to correct the initial impression that the claim was accurate when the ad was seen.
Because the claims related to an annual award based on testing over a particular time period only, but the ads did not explain that adequately, we concluded that ads (a), (b) and (c) were likely to mislead.
On this point ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements 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 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors).
On this point ad (c) breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors).
Action
Ads (a), (b) and (c) must not appear again in their current form. We told EE to ensure their ads did not suggest that comparisons were accurate at the time the claim was published unless they held adequate evidence.
