Background
Summary of Council decision:
Two issues were investigated, one of which was Not upheld and one Upheld.
Ad description
A national press ad, an outdoor poster, a website, a regional press ad, an Instagram post and a paid-for Instagram post for mobile network provider EE, seen in May, June, September 2019 and February 2020:
a. The national press ad, seen on 30 May 2019, featured text which stated “5G. NOW ON THE UK’S NO.1 NETWORK. Search 5GEE”. Small print was included at the foot of the ad.
b. The outdoor poster, seen on 2 June 2019, featured text which stated “5G. IT’S GOT TO BE EE. This is 5G, now on the UK’s No. 1 network. Search 5GEE”. Small print was included at the foot of the ad.
c. The website www.ee.co.uk, seen on 7 June 2019, featured text which stated “This is 5G, now on the UK’s No.1 network”.
d. The regional press ad, seen in the City AM newspaper on 2 September 2019, featured text which stated “UNLIMITED DATA UNRIVALLED NETWORK. Get unlimited data on the UK’s No.1 network”.
e. The Instagram post, seen on 2 September 2019, featured text which stated “UNBEATABLE, UNREPEATABLE, UNTOUCHABLE, UNBELIEVABLE, UNFORGETTABLE, UNFLAPPABLE, UNREPEATABLE, UNLIMITED, UNRIVALLED. Unlimited data on the UK’s No.1 Network. Who says you can’t?”.
f. The paid-for Instagram post, seen on 26 February 2020, featured an image of a mobile phone above text which stated "EXCLUSIVELY ON THE UK'S NO.1 NETWORK".
Issue
The ASA received two complaints.
1. Hutchison 3G Ltd t/a Three challenged whether ads (a), (b) and (c) misleadingly implied that EE was the top rated network for 5G capability.
2. Hutchison 3G Ltd t/a Three and a member of the public challenged whether the claims “No.1 network” in ads (a), (b), (c), (d), (e) and (f),“UNRIVALLED” in ads (d) and (e) and “UNBEATABLE” in ad (e) were misleading because a relevant measure was not used and because the small print was either absent or insufficiently prominent.
Response
1. EE Ltd said they separated the references to 5G from the ‘No.1 network’ claims to ensure none of the claims stated that they were “No.1 for 5G”. They said ads (a) and (b) drew a clear distinction between the new availability of 5G and the ‘No.1 network’ claim through use of the word “now”, and in all three of ads (a), (b) and (c) the use of the word “on” made it clear that the new technology had been added to the existing network.
2. EE explained that their network was formed from the merger of the Orange and T-Mobile networks, which produced the largest single network in the UK. Network infrastructure (the number and location of the masts that allowed data to be transmitted) was one of the key factors that determined network performance. The result was that the EE network had outperformed all other mobile networks on objective, relevant and measurable performance metrics for each of the last six years, as assessed by the independent testing body Rootmetrics. On that basis EE had been using the “UK’s No. 1 network” claim for the previous six years without challenge from any competitor.
EE believed “network” was the word everyone used to describe the means by which mobile connectivity was provided. It was therefore the best word available to them when seeking to compare their network with others. They considered that the principal message consumers would take from the claim was that EE had the best performing network. They also recognised that there was a possible secondary message conveyed by the claim, namely that EE had more customers than any of their competitors.
They provided evidence from a consumer omnibus survey carried out by an independent company with a nationally representative sample of over 2,000 participants. The results showed consumers understood the claim to mean either that EE was the best performing network or that it was the most popular in terms of customer numbers. They also pointed out that the survey evidence clearly showed consumers would not believe the claim took account of customer service. EE reiterated that the Rootmetrics testing demonstrated their network was objectively the best. They also provided confidential market share data produced by an independent research agency which they believed demonstrated that EE had more mobile customers than any other mobile provider. EE said they were therefore number one in the UK by all relevant, objective measures.
EE explained there were organisations that issued awards based on consumer sentiment, and that some advertisers relied solely on those awards or other forms of consumer surveys to substantiate claims about the performance of their network. Those awards/surveys were not representative of actual network performance, and actual, rather than perceived, customer experience. Given that it was possible to objectively compare the performance of mobile networks, consumers’ subjective perceptions of network performance, and awards based on those perceptions, were not relevant to the comparison in the ads. Consumers who saw the ads did not need to know that the objective network testing did not take account of subjective consumer views (views that would not affect their experience of the network). Nevertheless, they pointed out that EE had been recognised as “Mobile Network of the Year 2019” by Trusted Reviews, an award voted on by an expert panel, the Trusted Reviews team and members of the public.
EE pointed out that because consumers’ perceptions of network performance were not representative of actual network performance, it was possible for the two measures to contradict. They provided an example, whereby a rival network had been voted the best network for coverage by respondents to a uSwitch survey, while all of the objective data demonstrated that EE was the best network for coverage, a fact acknowledged on the uSwitch website. They said consumer surveys required a fraction of the investment of proper network testing and that network performance claims made on the basis of such surveys plainly had the capacity to mislead.
There was a clear distinction to be made between claims based on subjective measures and claims like theirs which were backed by robust, objective evidence. EE said the claims “unrivalled” and “unbeatable” in ad (e) appeared in the context of a series of claims linked to the word “unlimited”. The list of words was immediately qualified with “Unlimited data on the UK’s no.1 network” which for the reasons explained made clear the claims related to network superiority. They said further information which qualified the claim in respect of the RootMetrics report was provided in the small print in their press ads and the outdoor poster, and given the limited space available in ad (e), they included a reference to the Rootmetrics award in the body of the ad and further information on their website.
EE said they understood the ASA typically allowed unqualified market superiority claims like “no. 1” in circumstances where the advertiser had the largest market share. EE reiterated that their claim was principally that they had the UK’s best performing network and that they had provided evidence for that claim in addition to evidence of market share and evidence that those were the only ways in which consumers would interpret the claim. On that basis they could see no reason why their “UK’s no.1 network” claim would mislead consumers. They said that each of the ads stated “on the UK’s no.1 network”, and that 5G and data-use were both features related to a consumers’ experience of using the EE network, enhancing the experience of using their mobile phone. They were not related to ancillary features of the EE business, and the ads did not say that people could get 5G or unlimited data “from” or “with” the UK’s no.1 network, rather that they got them on the network.
Assessment
1. Not upheld
The ASA considered that the words “now on” in each of the three ads, in addition to the full stop after “5G” in ad (a), created a degree of separation between the claim of 5G provision and the claim about EE’s network rating, and suggested they had been the “No. 1 network” before the addition of 5G. We considered that consumers would therefore understand the claims in ads (a), (b) and (c) to mean that 5G capability was now available on EE, and had separately been rated the UK’s top mobile network operator. In light of the above, we concluded that the ads were unlikely to mislead on that point.
On that point, we investigated ads (a), (b) and (c) under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
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), but did not find them in breach.
2. Upheld
We noted the claims “UNBEATABLE” and “UNRIVALLED” in ad (e) appeared in a list of words beginning “UN” above text which stated “Unlimited data on the UK’s No.1 Network” and a caption which stated “Unlimited data, now available on the UK’s No.1 network”. We considered that the claims “UNBEATABLE” and “UNRIVALLED” would be understood by consumers to relate specifically to the “No.1 Network” claim in the ad, comparing EE with other mobile network operators. We understood that unlike in other contexts, where “No.1” claims were intended to convey that a product or service was the best-selling or held the greatest market share, EE’s intended use of the claim in each of the ads was to inform the audience that according to an independent organisation’s testing, their network outperformed those of their competitors.
The claim “No.1 Network”, however, as was also the case with ads (a), (b), (c), (d) and (f), linked to no further text informing consumers of the basis of the “No.1 Network” claim. We understood that mobile providers (the four mobile network operators and the mobile network virtual operators who used those networks to provide their own service) were colloquially referred to as “networks” including, for example, by EE themselves, stating “We’re EE, the UK’s No.1 Network” in their search engine listings. We considered that there were a number of different possible interpretations of the claim “No. 1 Network”, including as a comparison using objective measures such as highest turnover amongst mobile providers, having the most customers, or offering the best-selling product/package, amongst other interpretations. The claim could also mean that EE had been found or rated the UK’s best mobile provider, which could take account of objective measures of network performance and subjective consumer views.
We acknowledged that the word ‘network’ could also mean the physical infrastructure of a network, as intended by EE. Given the number of potential interpretations of the claim, we considered that it was ambiguous, and the basis of the claim was therefore likely to be material to consumers in order for them to make an informed decision. We understood that EE based their claims on their performance in Rootmetrics’ Rootscore report, which scored the relevant aspects of their physical network provision against the three other mobile network operators in the UK. The report tested each network operator on network reliability, network speed, data performance, call performance and text performance.
We considered that consumers would be unfamiliar with Rootmetrics and would therefore be unaware of how the Rootscore report tested operators. We noted the Rootmetrics logo in ads (a), (b), (d), (e) and (f), and further information in the footer of ads (a), (b) and (d) explaining that the claim was based on the rankings of the Rootscore report. However, we did not consider the presence of the logo sufficient, nor was the further information sufficiently prominent to link Rootmetrics to the claims and allow consumers an understanding of the basis of those claims. In addition, neither the logo nor the further information was present at all in ad (c).
The consumer omnibus survey provided by EE demonstrated that the claim “No.1 Network” was understood in a number of ways by consumers, and there was almost an even split between the proportion of consumers who understood the claim to relate to other aspects of the company’s service, such as their popularity or customer service score, and their network performance. We also noted the presence of other bodies which awarded mobile providers similar titles for offering the best quality service, and acknowledged Three’s concerns that the Rootscore report did not take account of additional factors which consumers considered important in rating the quality of the service provided by a mobile provider, such as customer service or sentiment. However, we considered it did not necessarily need to take account of those factors, as long as the basis of the claim was made clear.
While we noted EE’s reference to their Mobile Network of the Year award by Trusted Reviews, we understood that among the nominees were the three other mobile network operators and three virtual network operators that used those networks to deliver their own service. These aligned with the interpretation of the term “network” as meaning those businesses, rather than the meaning intended by EE, further underlining the ambiguity of the claim as it appeared in the ads. While we recognised the Rootscore report rated EE as the best mobile network operator, using various objective measures of their infrastructural network performance, because consumers could understand the claims “UNBEATABLE”, “UNRIVALLED” and “No.1 Network” more broadly to relate to the network operator and to take account of both objective measures of network performance and subjective consumer views of the service the mobile providers provided, we considered that EE should have made clearer that the claims “No.1 Network”, “UNBEATABLE” and “UNRIVALLED” related specifically to the report.
We concluded that the claims were therefore likely to mislead. On that point, ads (a), (b), (c), (d), (e) and (f) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
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
3.33
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).
Action
Ads (a), (b), (c), (d), (e) and (f) must not appear again in the form complained of. We told EE Ltd to ensure that their future advertising made the basis of their network performance claims sufficiently clear.
