Ad description
A website for Lebara Mobile, mobile.lebara.com, seen on 2 February 2022, featured a page that advertised their 30-day SIM-only plans. Six of the plans included “Unlimited UK minutes” and “Unlimited UK texts”. One plan stated, “15GB 5G Data Unlimited UK mins 100 International mins to 42 countries £10 30 days”. Clicking on an arrow next to text that stated, “View plan details” at the bottom of each plan brought up further information about that plan, and stated, “Unlimited UK minutes” and “Unlimited UK texts”. Further text stated, “Fair usage policy applies for Unlimited UK texts. Learn more here”. The other five plans that offered unlimited UK minutes and texts included the same text about the fair usage policy.
Issue
Vectone Mobile Holding Ltd challenged whether the claims that each of the six plans included “unlimited” UK minutes and texts were misleading.Response
Lebara Mobile Ltd said its unlimited service was a consumer service. They explained that their Fair Usage Policy (FUP) used reasonable volume thresholds to establish whether a user of the unlimited service was a legitimate user of the service. Users who exceeded the thresholds were unlikely to be using the service legitimately. They believed it was industry practice for “unlimited” plans to be subject to restrictions detailed in a FUP. The practice allowed providers to identify which consumers were legitimate users of unlimited services, and helped to protect consumers against fraudulent and spam text messages and calls.
Under its FUP, Lebara operated a threshold of 200 text messages a day and 3,000 voice minutes a month. Although, in practice they applied a higher threshold to the voice minutes. That was designed to prevent the service from being used for non-legitimate reasons, such as commercial purposes, suspected fraud, and numbers being used for machine-generated spam calling. Such use was contrary to their terms and conditions, and such users were not legitimate. They said their terms and conditions stated clearly that unlimited call and text messages were subject to a FUP. They also specified what was deemed to be unacceptable use of Lebara’s services and that they would take action in the event of suspected misuse of the services. Additionally, they had added further wording under each relevant plan on their website to highlight and emphasise to consumers that the plans were subject to a FUP. They believed consumers, after seeing that wording, would have taken the time to learn about the FUP and, therefore, would not have been misled before entering a contract.
They did not consider that the thresholds set out in the FUP imposed a significant limitation on usage. They said that fewer than 0.002% of their customers incurred charges under Lebara’s voice call FUP, and approximately 0.02% of their customers incurred charges under their text message FUP. This demonstrated that the thresholds acted as they had intended; to prevent misuse of the network.They said that they had market tested their FUP. The absence of complaints from consumers confirmed Lebara’s understanding that consumers purchasing the services had understood the thresholds used, and that these were moderate.
Although they thought that the policy was fair, they said that they had made changes to it.
Assessment
Upheld
Six of the SIM-only plans stated that they included “unlimited UK minutes” and “unlimited UK texts”, and that a “Fair usage policy” also applied to UK texts. We considered consumers were likely to expect that telephony minutes and text services described as “unlimited” were not limited and therefore had no usage cap. Furthermore, consumers would not expect that additional charges would be imposed on users of these services once they reached a usage cap.
We understood that Lebara applied a cap on usage, of 3,000 minutes per month and 200 text messages per day, in order to regulate illegitimate use of the unlimited calls and texts. We also understood that in practice the threshold applied to voice minutes was higher. Customers who reached the thresholds were suspended from their service and charged the standard rates for calls and/or texts, respectively. We considered merely exceeding a particular level of usage was not enough to render a user illegitimate.
We noted the ad included text that stated the “unlimited UK texts” service was subject to an FUP. However, it did not state that the “unlimited UK minutes” service was also subject to an FUP. Notwithstanding that, because a cap applied to those services, which we noted that some of Lebara’s legitimate users had exceeded, we did not consider they were truly unlimited. Therefore, because Lebara had applied restrictions to “unlimited” services, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules and 3.1 3.1 Advertisements must not materially mislead or be likely to do so. 3.3 3.3 For advertisements that quote prices for an advertised product or service, material information [for the purposes of rule 3.2] includes: (Misleading advertising), 3.7 3.7 Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context. (Substantiation) and 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. (Qualification).
Action
The ad must not appear again in its current form. We told Lebara Mobile Ltd not to describe their telephony minutes and text services as “unlimited” if they applied a cap on usage.
