Ad description
A website, www.giffgaff.com, for the mobile phone network giffgaff.
On the home page of the website, under "Phone Plans", was an icon with the text, "giffgaff £10 goodybag". Text below stated, "250 mins. Ultd web. Ultd texts". Clicking on the icon accessed a web page headed, "£10 goodybag". Text on this page stated, "For only £10 get 250 UK minutes, unlimited UK texts and unlimited mobile internet for one month. Plus, you will still benefit from our free giffgaff to giffgaff calls and texts on top of that". Under the text "More into on pricing" it stated, "Unlimited texts and internet. We are unlimited for personal mobile use - but not for commercial and automated use".
A terms and conditions page was accessible via a link on the same page. Under the "Our Rights to Bar or Disconnect Your SIM Card" section the website listed reasons why giffgaff might disconnect a customer's SIM card, including, "If you do anything or permit anyone else to do anything which we reasonably think adversely impacts the Service to other giffgaff customers or may adversely affect the Network".
On the 'Help' page of the website, under the text, "What's the fair use policy?" it stated, "If you have the £10, £15 of £20 goodybag (i.e. wherever we say that data is unlimited) then there is NO Fair use policy ... Unlimited - At giffgaff 'unlimited' means 'unlimited', so play fair and play nice, so it stays that way".
Issue
Eight complainants challenged whether the claims that giffgaff offered unlimited mobile data packages were misleading.
Response
giffgaff Ltd (giffgaff) said their legitimate users were not governed by a fair usage policy or a hidden usage allowance. They said if a customer was using their SIM card for personal use of the service, and for non-commercial and non-automated purposes, they could enjoy an unlimited data allowance and would not face any additional charge or permanent suspension as a consequence of exceeding any usage threshold.
They added that they had outlined in their terms and conditions what constituted illegitimate use of the service and that they had a process for dealing with suspected illegitimate users. They pointed out that their terms and conditions stated that all usage must be for private, personal and non-commercial use and that SIM cards could not be used, "a) In or connected to any other device including modems, dongles or any other way to connect to a PC (unless you are on a gigabag plan); b) fraudulently; c) in such a way that adversely impacts the service to other giffgaff customers; d) illegally". The terms and conditions also stated, "If giffgaff reasonably suspects you are not acting in accordance with this clause, giffgaff reserves the right to ... impose network protection controls which may reduce your speed of transmission or remove the goodybag from your account ... having attempted to contact you first".
giffgaff stated that where a customer used more than 1GB of mobile data in less than one hour they would be contacted to make sure that they were not using the service in an illegitimate manner. They said they would on occasion temporarily suspend a customer's service if contact could not be made, or the usage was so extreme that it was affecting other users. They said that this process impacted a very small minority of their customers. They added that if a customer, contacted in this way, assured them that they were using the service legitimately, they would have their service reconnected.
In summation, giffgaff said their service was unlimited for legitimate users.
Assessment
Not upheld
The ASA noted that giffgaff offered "unlimited" mobile internet and stated explicitly that there was no fair use policy (FUP) or maximum usage threshold. We noted giffgaff claimed they had no FUP and that legitimate users were not penalised for their data usage. However, we understood that some of the complainants had had their data connection disconnected and, when they queried this with giffgaff were told that their data usage was so high it was adversely impacting other customers. One complainant advised us that his service was disconnected due to suspected illegitimate use, but when he confirmed that he was not using the service in a manner that was banned by the terms and conditions (such as internet tethering), he was advised that his usage was still too high and his service would be disconnected if the usage rate continued.
We put these examples to giffgaff, who explained that the customer service agents who had dealt with those customers had provided them with inaccurate information: they had used the condition that the SIM card could not be used "in such a way that adversely impacts the service to other giffgaff customers" incorrectly. Giffgaff maintained that this term should not have been used to threaten customers with disconnection following high levels of usage. They advised that this term was there so they could deal with rogue users who might do something, knowingly or otherwise, to adversely impact the experience of the other users of the network. They said they were not aware of ever having to use this term but added that it was necessary should the situation ever arise. They said all UK mobile network providers had to have the ability to stop usage of the type that did not meet required interface standards for their networks. These issues were not necessarily linked to usage volumes.
We noted the terms and conditions of the unlimited mobile internet service outlined that the service must not be used for tethering or connecting to other devices. We considered that this was a fair condition and was not contrary to what the average consumer would understand from an unlimited mobile internet service, targeted at consumers in general. We also considered the condition that the service would not be used "in such a way that adversely impacts the service to other gifgaff customers" was, when used correctly, an acceptable condition. We were concerned that some customers had been given inaccurate information and that some customer service agents had used this condition as a de facto fair use policy linked to data volume. However, because this was contrary to giffgaff policy we concluded that it did not make the "unlimited" claim misleading.
We investigated the ad 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),
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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration) but did not find it in breach.
Action
No further action necessary.
