Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
When can unlimited claims be used?
When can unlimited claims be used?
In 2011 new Advertising Guidance was published that clarified the use of the term “unlimited” in ads for telecommunications services.
It made clear that ads must not mislead the average consumer about the benefits expected from an unlimited product, or about the existence of any factors likely to impact usage. Put simply, provider-imposed limitations for ‘unlimited’ telecommunications services should not restrict or limit a service in a way likely to be deemed contrary to the average consumer’s expectation of an ‘unlimited’ service. It provided criteria to help determine the acceptability of unlimited claims, and stated that unlimited claims are likely to be acceptable if:
- the legitimate user incurs no additional charge or suspension of their service as a consequence of exceeding any usage threshold associated with a fair use policy (FUP), traffic management policy or the like; and
Put simply, a legitimate user is a customer who abides by the service’s T&Cs. Conversely, an illegitimate user is one who breaches the T&Cs, such as by downloading illegal content.
Importantly, exceeding a particular usage level or using the service for a lawful activity will not in itself render a user illegitimate. This was evidenced in 2022, when the ASA upheld a complaint challenging if 30-day SIM only plans on Lebara Mobile’s website, which were described as including ‘Unlimited UK minutes’ and ‘Unlimited UK texts’, were misleading (Lebara Mobile Ltd t/a Lebara Ltd, 10 August 2022). There was a cap on usage of 3,000 minutes per month and 200 texts a day, to regulate the ‘illegitimate use’ of unlimited texts/calls. Exceeding a usage level did not render a user illegitimate.
- provider-imposed limitations that affect the speed or usage of the service are moderate only and are clearly explained in the marketing communication.
Importantly, in 2020, the ASA explained that where a restriction applied to all users of a particular plan (i.e. an overarching speed restriction), and in the absence of a policy imposing restrictions on individual users (i.e. only those using the most data), there was no requirement to consider if such restrictions were moderate or not (Vodafone Ltd t/a Voxi, Vodafone, 5 February 2020).
The Advertising Guidance confirms that, provided they satisfy the above criteria, limitations contained within traffic management policies and fair usage policies are likely to be considered acceptable when used for ‘unlimited’ services. However, it makes clear that the unlimited claims would be assessed in the context in which they appear, and that the element of the service to which the ‘unlimited’ claim relates is key.
Types of unlimited claims
- Minutes and Texts
In respect of ‘unlimited minutes’ and/or ‘unlimited texts’ claims, the ASA set out a more definitive position in a recent ruling. It found that consumers were likely to expect that telephony minutes and text services described as ‘unlimited’ had no usage cap (i.e. that there was no limit on the number of texts that could be sent, or minutes used). Because a cap did apply to an ‘unlimited’ UK texts and minutes' claim, which was the subject of a ruling, the offer was not truly unlimited, and was misleading (Lebara Mobile Ltd t/a Lebara Ltd, 10 August 2022).
Therefore, for unlimited minutes and texts claims, an advertiser can only use ‘unlimited’ if there is no cap on the number of minutes and texts available.
- Speed
In 2020, the ASA found that the reference in one ad to all unlimited plans being available with 5G was deemed misleading, as the download speed restrictions imposed on some of the ‘unlimited’ plans advertised meant customers would not benefit from the functionality 5G was capable of i.e. download speed (Vodafone Ltd t/a Voxi, Vodafone, 5 February 2020).
Separately, in respect of their bandwidth restriction policy impacting peer to peer (P2P) activity, in 2015 Three could not demonstrate that ‘TrafficSense’ solely slowed the service for illegitimate users only. The ASA understood the service of legitimate users could also be impacted by the bandwidth restriction policy on P2P activity. As the impact on peer to peer users of their policies was likely to be significant, Three had not demonstrated that the impact on legitimate users was ‘moderate only’.
In another ruling, the advertiser reduced the speeds of the heaviest users by 50%, which the ASA considered had a more than moderate impact on those customers (Virgin Media Ltd, 27 March 2013). As a result, the ‘unlimited’ claim was deemed misleading and contrary to the CAP Code. Limiting the speeds of those exceeding a data threshold (60GB) during peak times is also likely to be problematic (Avonline plc, 5 February 2014). Here, the ASA confirmed the ad was likely to mislead, as the advertiser had attempted to qualify an ‘unlimited’ claim, and had not demonstrated that the restrictions were only moderate.
- Usage
In 2015, ads for a Three mobile price plan referenced ‘all you can eat’ data. A users data allowance was cut off after using 4GB of data for tethering. This was a provider-imposed limitation and represented an immoderate restriction on legitimate data use.
Even as far back as 2013, the ASA upheld complaints about several companies that offered “unlimited” data but imposed limitations for exceeding the threshold of FUPs. In one case the advertiser contacted users on congested exchanges using more than 150 GB in a month and asked them to reduce their usage in peak hours or face having their service suspended (Be Un Limited, 5 June 2013). In this instance, it was determined that because the service was restricted for a small proportion of customers, the plan was not unlimited, meaning the ad was misleading.
- Claims beyond ‘unlimited’
In early 2016, the ASA considered an ad which stated ‘TOTALLY UNLIMITED’, despite a traffic management policy being imposed. The ASA noted that unlimited claims were acceptable if limitations impacting speed or usage were moderate only and were clearly explained. The ASA concluded that ‘totally unlimited’ claims were stronger than other ‘unlimited claims’, and that consumers would understand this to mean no provider-imposed limitations were applicable whatsoever. The ad was therefore deemed misleading and unsubstantiated (the fact the existence of the policy was not made clear in the ad also counted against the advertiser), despite the fact the restrictions imposed by the policy would have been considered moderate for a standard ‘unlimited’ claim.