ASA ruling on EE – misleading and ambiguous mobile network claims
Can mobile network providers claim superiority for a service they provide on their network in their ads?The key takeaway
Mobile network providers should not mislead consumers by suggesting that the service offered by competitors did not provide the significantly faster speeds that 5G was expected to provide.
Furthermore, mobile network providers should be clear in their distinction between a service they provide on their network, and how they brand themselves.
EE: 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, were 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”.
Hutchison 3G UK Ltd t/a Three: A tweet and a wraparound national press ad, seen in August 2019, promoted Three’s 5G service:
(g) The tweet stated, “If it’s not Three, it’s not real 5G”, and included images of several products including a Superman-like action figure called “Special Man” and “Burt Sampson”.
(h) The press ad, a wraparound in the Metro newspaper, stated, “If it’s not Three, it’s not real 5G … We’re building the UK’s fastest 5G network”. The rear of the wraparound stated, “Spectrum is the wobbly air that network need to transmit data – and we’ve got more 5G spectrum than anyone else. Plus, not all spectrum is created equal. We’re the only UK mobile network to have 100MHZ of 5G spectrum in one big block that’s real 5G. We’re building the UK’s chunkiest spectrum leading, router bursting, lag punishing, speed dominating 5G network. When the future comes, you’ll be glad you’ve got 5G. When the future comes, you’ll be glad you’re on Three”.
The ASA received complaints challenging whether ads (a), (b) and (c) misleadingly implied that EE was the top rated network for 5G capability. Complainants also 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.
The ASA also received complaints challenging whether the claim “If it’s not Three, it’s not real 5G” was misleading.
EE responded noting they separated the reference to 5G from the “No. 1 network” claims to ensure that none of the claims stated they were “No. 1 for 5G”. EE further stated they drew a distinction between the new availability of 5G and the “No. 1 network” claim through use of the word “now”. EE state they made it clear that the new technology had been added to the existing network through the use of the word “on”.
EE stated that they had been using the “UK’s No.1 network” claim for the previous six years without any challenge from any competitor because they were the largest single network in the UK, and the EE network had outperformed all other mobile networks on objective, relevant and measurable performance metrics for each of the last 6 years, as assessed by RootMetrics.
EE stated 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.
In relation to the complaints against Three, Three believed the extent of their 5G spectrum and the infrastructure of their network set them apart from their competitors. They believed the technicalities of 5G were not well understood by consumers, and there was a limit to how much explanation could be included in an ad. Further detailed technical information for consumers was accessible on their website.
Three said the structure of their network (a cloud core and 20 data centres across the UK) delivered the lowest possible latency and better service experience. Three overhauled their network and service delivery systems to increase resilience and capacity and reduce latency, in order to accommodate the expected increase in data usage that would come with 5G.
They further cited the views of the International Telecommunication Union, the European Conference of Postal and Telecommunications Administrators, the GSM Association (a trade body for mobile operators) and Huawei on the importance of a 5G operator having at least 100 MHz of bandwidth if they were to deliver high speed, low latency services. Three believed that as they had access to this bandwidth, it set them apart from other 5G operators, none of which had access to 100 MHz of bandwidth, and that this was what the reference to “real 5G” was intended to relate to.
In the earlier ruling against Three, the ASA considered consumers were unlikely to be familiar with the technical specifications of 5G and that they would primarily associate it with speeds that were significantly faster than 4G services.
The ASA considered they would interpret the ads to mean that the 5G services offered by other providers would not provide those significantly faster speeds and that there was little value in obtaining 5G from them. The ASA obtained informal advice from Ofcom and understood 5G would provide faster speeds and improved responsiveness; more capacity for the increased number of devices that would be connected and the ability to handle more data, compared with 4G services.
The ASA acknowledged that, all other factors being equal, greater bandwidth would allow a provider to support greater traffic capacity. However, because take up was still so limited, differences in 5G capacity between networks were unlikely to result in material differences in the experiences of end users at the time the ad appeared. The ASA considered Three’s 5G service was not, at that time, likely to be so significantly better than other 5G services as to render them not “real” 5G, therefore concluded that the claim “If it’s not Three, it’s not real 5G” was likely to mislead.
In its later ruling against EE, 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. The ASA considered that consumers would understand the claims in ads (a), (b) and (c) to mean that 5G capability was now available on EE, and EE had separately been rated the UK’s top mobile network operator. The ASA concluded that the ads were unlikely to mislead on that point.
However, the ASA held that the ads were likely to mislead on the points regarding “UNBEATABLE” and “UNRIVALLED”. The ASA considered that this would be understood by consumers to relate specifically to the “No. 1 Network” claim in the ad, comparing EE with other mobile network operators. The word “network” could also mean physical infrastructure of a network, as intended by EE.
Given the number of potential interpretations of the claim, the ASA 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.
Why is this important?
The ASA acknowledges the ambiguity of claims such as “No.1” and “Unrivalled” though requires the basis of these claims to be made clear. This is evident in both its rulings against EE and Three.
Additionally, advertised claims must be true to the consumer’s experience in terms of what the claimed technology actually achieves in the marketplace at the current time. If the substantiation is lacking, then the ad may be deemed misleading.
Any practical tips?
- Avoid using wording which suggests that the service offered by competitors does not provide the level of value the service is expected to provide.
- Be clear on how a service is to be provided in order to avoid misleading consumers eg make it clear that a service is available on your specific network!