Ad description
TV and national press ads for O2 seen in September 2020:
a. The TV ad showed various people being “helped” by the O2 robot while undertaking day-to-day activities such as travelling, delivering a parcel, making a transaction for some flowers and meeting a friend. Voiceover stated, “Because we’re the UK’s number one network, we’re here for you whenever you need us.” On-screen text stated “No 1 Network: Based on total number of connections to O2 vs number of connections to each of Vodafone, BT Group and 3 as of 30.6.20” and “Limitations to network coverage and terms apply. To verify see o2.co.uk/network”.
b. The press ad showed a phone. Text stated that the monthly price included Apple TV+ for 12 months and six months of Disney+, ending with “All on the UK’s No.1 Network”. Several lines of text at the bottom of the ad included “No.1 Network [in bold]: Based on total number of connections to O2 network vs. number of connections to each of Vodafone, BT Group and Three as of 30.6.20. To verify, see o2.co.uk/network”.
Issue
EE Ltd and Vodafone challenged whether the claim "the UK's No.1 Network", which they understood included connections to O2 by customers of other providers, was misleading.Response
Telefonica UK Ltd t/a O2 said the claim was based on the total number of connections to the O2 network in comparison with the total number of connections to each of Vodafone, BT Group (which included EE) and Three. They said the claim had been verified by independent, third-party data; was explained in small print; and that its intended meaning was straightforward and in line with previous ASA rulings. O2 said the claim appeared in the fifth level of text in the press ad and the qualification appeared on the top line of small print and was introduced by bold font. They had therefore believed the qualification was sufficiently prominent in relation to the claim but were willing to add a sub-line to the claim or to use an asterisk to link to the small print, and had begun doing that in subsequent ads. They said they were also willing to amend the timing of the on-screen text in the TV ad.
O2 said their figures included connections made using their mobile virtual network operators (MVNOs) Sky, Tesco, Giffgaff and Lycamobile. They said the figures for Vodafone, BT Group and Three that they had used for comparison also included the MVNO figures for each of those companies but that, nevertheless, if MVNO figures for O2, Vodafone, BT Group and Three were removed from the comparison, the claim was still true. O2 said the small print in the press ad signposted consumers to their network page, where an asterisk next to the “No.1 Network” claim linked to small print at the bottom of the page which contained a direct link to the substantiating data. They acknowledged that the substantiation for the claim was not shown on their network page, but believed the small print was explicit about how to verify the claim and said the substantiation was therefore two clicks away from the small print. O2 also noted CAP’s advice that “It is also likely to be acceptable to provide verification information upon request, by directing consumers to contact a postal or email address to obtain verification information”.
O2 believed needing to click twice on a website, as in their method of verification, was clearer, easier, quicker and fairer for consumers. They were nevertheless willing to amend their ad, and the method of verification, so that their website included a collapsible heading containing the verification data or by inviting consumers to contact O2 for verification.
On the MVNO point, Clearcast said the BT Group figures O2 had compared themselves with included EE, BT Mobile, ASDA Mobile and Plusnet, and the figure for Vodafone included VOXI and Lebara. Clearcast noted that the TV ad did not refer to numbers of O2 customers and thought the comparison was reasonable. Clearcast believed it was important to distinguish between O2 as a mobile provider that a customer would sign up to, and O2 as a mobile network which provided the infrastructure for several mobile providers. They said the TV ad promoted O2 as a mobile network.
Clearcast believed the natural understanding of the “No. 1 Network” claim, in the absence of any claims about price, user satisfaction, reliability, speed or other aspects of the service, would be a straightforward measure of popularity. In the context of a network, they believed number of connections was the nearest equivalent to “sales” and therefore in line with previous ASA decisions. Clearcast said the o2.co.uk/network address in the TV ad took enquirers to a page where “connections” were defined as “the number of Subscriber Identity Modules (SIMs) classed as active in the last 90 days”; which explained that “No. 1 Network” was based on “total number of connections to O2 network vs. number of connections to each of Vodafone, BT Group and Three as of 30.06.20” and which showed the ranking of the four networks being compared. Clearcast considered that information was sufficient for consumers to verify the comparison. For those who wanted it, text and a link stated, “For further information, please see our terms and conditions”, and took consumers to a page where tables showed the breakdown of the different types of connection for each of the four networks. Clearcast did not see that information as part of the key verification information for consumers.
Assessment
Upheld
The ASA considered that the “No. 1 Network” claim appeared as a prominent claim in the context of day-to-day activities being made easier by being with O2 in the TV ad and getting a new phone at a particular price in the press ad. We considered that, in those contexts, the claim was open to a number of different interpretations for example, highest turnover amongst mobile providers; having the most customers; offering the best-selling product/package; or having the most efficient physical infrastructure. Given the number of potential interpretations, we considered the claim was ambiguous and that the ads needed to make the basis of the claim clear. In the press ad, the explanation “No.1 Network [bold]: Based on total number of connections to O2 network vs. number of connections to each of Vodafone, BT Group and Three as of 30.06.20. To verify, see o2.co.uk/network” appeared within several lines of small, dense text which also included information about the timing of price changes; eligibility for Disney+ and Apple TV and the terms of O2’s Refresh Custom plans. There was no asterisk to link the “No. 1 Network” claim to the explanation. We considered it was unlikely that consumers would read through the text to reach the explanation of the basis of the “No. 1 Network” claim.
In the TV ad, the explanation “No.1 Network: Based on total number of connections to O2 network vs. number of connections to each of Vodafone, BT Group and Three as of 30.06.20” appeared on its own, without the website address for verification. This was also in advance of the appearance of the “No. 1 Network” claim (the website address appeared later, at the end of a second section of text “Limitations to network coverage and terms apply. To verify see o2.co.uk/network”). We considered it was unlikely that viewers would appreciate the significance of the information or remember it when the claim subsequently appeared. But even if consumers read through the small print in the press ad or understood and remembered the explanation in the TV ad, we considered “connections” was a term open to a number of different interpretations for example, the highest number of phone numbers, customers or calls made compared with other providers. We noted that text on the o2.co.uk/network web page referred to in the ads stated “… more people rely on our network than any other. Every single day we have 34.1 million connections* pinging on our network, helping people and businesses all over the UK to stay connected to the things that matter”. The asterisk linked to text at the bottom of the page which stated “Connections are defined as the number of Subscriber Identity Modules (SIMs) classed as active in the last 90 days … For further information please see our terms and conditions [weblink]”. We considered consumers were likely to understand from this that “connections” referred to active customers or phone numbers. However, it was only after going through to the terms and conditions that consumers would see the comparative figure tables that included MVNO and M2M sims.
Even then, there was no explanation of what MVNO and M2M sims were. We noted from O2’s explanation to us that MVNO referred to customers using O2’s network via mobile virtual network operators (MVNOs) which themselves used O2’s network Sky, Tesco, Giffgaff and Lycamobile. We considered consumers were unlikely to expect the comparison to include customers who had chosen to join another provider such as Sky, Tesco, Giffgaff or Lycamobile, but where that provider used the O2 network. We noted O2’s statement that, if MVNO figures for O2, Vodafone, BT Group and Three were removed from the comparison, the claim was still true. However, we noted that Machine-to-Machine connections (M2M, where devices communicated to each other without human intervention such as in smart home systems) were also included in the comparison. We acknowledged that, unlike MVNO, M2M customers had chosen to be O2 customers. Nevertheless, we considered they too needed to be excluded from the calculations because consumers were unlikely to have them in mind in a comparison of customer numbers. Without MVNO and M2M, the verification information did not rank O2 in first place above all of Vodafone, BT Group and Three. Because the ads and the information they directed consumers to did not contain sufficient detail for them to understand the basis of the claim, and because we considered the information on which the claim was based differed significantly from what consumers would expect, we concluded that the claim was misleading.
Ad (a) breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
In setting or revising any such standards, Ofcom must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of these matters:
a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;
b) the likely size and composition of a potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
c) the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of the programme's content can be brought to the attention of potential members of the audience;
d) the likelihood of persons who are unaware of the nature of the programme's content being unintentionally exposed, by their own actions, to that content;
e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section...".
Section 319(4).
(Misleading advertising) and
3.33
3.33
Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.
(Comparisons with Identifiable Competitors). Ad (b) breached CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.3
3.3
For advertisements that quote prices for an advertised product or service, material information [for the purposes of rule
3.2
3.2
In setting or revising any such standards, Ofcom must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of these matters:
a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;
b) the likely size and composition of a potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
c) the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of the programme's content can be brought to the attention of potential members of the audience;
d) the likelihood of persons who are unaware of the nature of the programme's content being unintentionally exposed, by their own actions, to that content;
e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section...".
Section 319(4).
includes:
(Misleading advertising) and
3.33
3.33
Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.
(Comparisons with identifiable competitors).
Action
We told O2 to ensure that claims that made a comparison with competitors made the basis of the comparison clear and did not mislead by, for example, including inappropriate information in comparative data.
