Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Ads for Three mobile broadband:
a. A press ad was headed "4G is nice. But our Ultrafast network is built for more". Further text stated "Running at what we affectionately call 3.9G, our Ultrafast network is built to give you all-you-can-eat-data. So you won't run out when sharing pictures of happy cheese graters. And when we roll out 4G, we'll nudge you up without charging you for the privilege. Which is nice too".
b. A poster on the London underground featured the same text as ad (a).
c. The Three website www.three.co.uk, included a web page headed "Ultrafast. Want faster internetting without paying a premium?". Further text stated "We believe you shouldn't have to wait for 4G to get a great internet experience. That's why we've already upgraded our 3G network with the latest DC-HSDPA technology to make it Ultrafast. We know, all those letters are a bit of a mouthful, so we affectionately refer to it as 3.9G. We've always been built for data and we love the internet - that's why we offer all-you-can-eat data, so you won't need to worry about running out. And as soon as we roll out 4G we'll nudge you up without charging you for the privilege".
d. A page on the 'blog' section of the website was headed "Our Ultrafast 3.9G Network". Further text stated "As you may already know, were launching our 4G service later this year. Since last year we've been rolling out DC HSDPA as part of our Ultrafast network. This now covers a massive 80% of the population. What you might not know, however, is how close Ultrafast speeds can be to 4G speeds. So close in fact, that we're affectionately calling our Ultrafast network 3.9G. We hope this makes a little clearer just how fast our network currently is. It means that 80% of you are already able to enjoy faster browsing, social networking and downloading provided you've got one of the many Ultrafast enabled devices in our range. If you've got All You Can Eat data as well, there'll be nothing stopping you sharing all the happy cheese graters you can manage. When we do launch our 4G service, we'll be nudging customers up with no extra charge as well. What's not to like?!".
Issue
Everything Everywhere challenged whether:
1. the claim "3.9G" in each of the ads was misleading, because they believed it implied that the speed of Three's broadband service was very close to that of 4G services; and
2. the claim "Our Ultrafast network is built for more" in ads (a) and (b) was misleading and could be substantiated.
Response
1. Hutchison 3G UK Ltd t/a 3 (Three) said that the term "3.9G" was not being used in the ads as an official technological term, but was being used to describe their own DC-HSDPA network, which was one step below 4G technology. They said that in the USA, DC-HSDPA was known as 4G. They said that the term "3.9G" was intended to communicate that their network's technology was far superior to 3G. They did not believe the use of the term was misleading.
Three provided information on the differences between 3G DC-HSDPA and 4G LTE technology. They said it showed that DC-HSDPA was extremely close to 4G LTE in performance, and in some cases outperformed it. They said the 1, 2, 3 and 4 mobile phone generation technologies were not based on technical standards, but merely described the evolutionary nature of the user experience. They said that DC-HSDPA and LTE were only radio technologies and the data still had to be transferred back to a "core network" before it was routed to users, and that the core network technology was therefore of great important to the user experience. They said that Three had an advanced core which was deployed for DC-HSDPA as well as LTE. They said that customer experience depended on capacity, data rate and range of cell sites. They said it also depended on whether the cell sites used MIMO (multiple in multiple out) technology, and that better performance with 4G LT could sometimes be due to MIMO, which could also be installed with DC-HSDPA. They said that although they had not intended the term "3.9G" as a technical one, they believed it was not misleading because their DC-HSDPA network was very close in terms of capability to 4G LTE.
2. They said that the message of the ads was made clear in the narrative of the body copy. They said that the claim was intended to communicate that the network speed and the type of technology used were only one side of the story and that other network factors could also influence levels of speed and quality for customers. They said that tariff costs and what was included in the tariff were also relevant. They said the overall intended message was that their network was not simply interested in speed, and that they offered the UK's best data propositions taking into account, value, size, quality and speed. They did not believe consumers would take the claim to be a comparison between each operator's technological capabilities. They said no comparison was being made with any other mobile operator.
Assessment
1. Upheld
The ASA considered that, although the ads did not imply that "3.9G" was an official term in the telecoms industry, the claim did imply that Three's 3G DC-HSDPA network technology and speeds were very close to that of 4G, and superior to those offered by 3G technology in general. We also considered that the specific references to "4G" and Three's network as "Ultrafast" added to that impression. Three had provided information on the differences between DC-HSDPA and 4G LTE technology. However, the document was largely theoretical, and did not contain evidence of the actual measurable speeds offered by Three's network and how this compared to typical 3G and 4G speeds. We had not seen evidence to demonstrate that Three's 3G DC-HSDPA network technology and speeds were very close to that of 4G, and superior to those offered by 3G technology in general and we therefore concluded that the claim "3.9G" was misleading.
On this point ads (a), (b), (c) and (d) breached 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) and
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(exaggeration).
2. Upheld
We considered that because the claim "Our Ultrafast network is built for more" immediately followed the statement "4G is nice" it would be understood by consumers as a comparison between Three's network and those networks offering 4G, which we understood was only Everything Everywhere at the time the ad appeared. The CAP Code required that comparisons with identifiable competitors were not misleading and must objectively compare one or more material, relevant, verifiable and representative feature of those products. We considered that the claims implied that Three's network offered specific technological advantages over those from Everything Everywhere, that would be of benefit to consumers. The ad qualified the claim with the statement "our Ultrafast network is built to give you all-you-can-eat-data" but we had not seen any evidence that the offering of all-you-can-eat data plans by Three was the result of technological capabilities of their network beyond those of Everything Everywhere. We also considered the unclear basis for the claim meant that it was not verifiable by consumers. We concluded the claim "Our Ultrafast network is built for more" was misleading and had not been substantiated.
On this point ads (a) and (b) breached 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),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(exaggeration) 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.
and
3.35
3.35
They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price.
(Comparisons with identifiable competitors).
Action
The ads must not appear again in their current form. We told Three to ensure that claims did not mislead and that comparative claims complied with the requirements of the Code.
CAP Code (Edition 12)
3.1 3.11 3.3 3.33 3.35 3.7 3.9
