Judicial review of ASA decision on “average consumer” test

Had the Advertising Standards Authority (ASA) correctly applied the “average consumer” test when deciding that the use of the term “fibre” in ads for part-fibre broadband was not materially misleading?

The background

In November 2017, following the ASA’s review on fibre broadband which examined the use of the term “fibre” in ads when describing part-fibre and full-fibre broadband, the ASA announced that the word “fibre” was not likely to mislead consumers when referring to part-fibre services in ads. In order to reach this conclusion, the ASA had engaged with both part and full-fibre service providers, consumers, regulators and undertaken customer research. It found that the term “fibre” was not one of the significant factors that consumers considered when purchasing a broadband package. Also, consumers would not have chosen differently even with knowledge of the difference between part and full-fibre broadband.

As a result of this conclusion, CityFibre, a full-fibre broadband service provider claimed that the use of the term “fibre” in ads for part-fibre broadband, where there was no mention of part-fibre, was materially misleading to consumers. They argued that this had to be the case as full-fibre is “objectively superior” to part-fibre. Essentially, part-fibre services use full-fibre from the transmitting station, but the last section to the consumer’s home is copper or another material. CityFibre applied for judicial review, arguing that the ASA had made an error in law, as they had incorrectly applied the test for the average consumer under the Consumer Protection from Unfair Trading Regulations 2008 (the Regulations).

The decision

The High Court upheld the ASA’s decision that the use of the term “fibre” in broadband advertisements for part-fibre services was unlikely to mislead the average consumer. The court examined the application of the test under the Regulations, namely  “the average consumer is assumed to be reasonably well-informed, reasonably observant and circumspect”. The Judge, who for the purposes of the decision, deliberated on the basis that full-fibre was indeed objectively superior to part-fibre, set out guidance on the definition of the “average consumer”. His conclusions were:

• the “average consumer” does not need to be reasonably well-informed about specific characteristics of the product or service, in this case, being aware of the difference between part and full-fibre broadband services. Instead the judge found “that the average consumer is only to be considered reasonably well-informed about the product or service more generally”
• it was important to define the concept of the average consumer as a “particular population of actual persons, namely, consumers at whom the relevant advertising is targeted”. Therefore, in this scenario, the ASA were justified in using the results from the research that they had commissioned to determine their conclusion

the ASA had not acted irrationally and it was clear from the review and evidence provided that “the ASA had regard to the recognised benefits of full-fibre” but the superiority was ultimately “not relevant to the question it had set itself”.

Why is this important?

This ruling is salient for both products/services and ads that might be deemed to be misleading. Remember that when applying the “average consumer” test, the reasonably well-informed consumer only needs to have regard to the product or service more generally and not to its specific features.

Furthermore, the ruling highlights the importance of properly conducted consumer research and that appropriate evidence can be used when coming to a decision about the “average consumer”.

Any practical tips?

When assessing whether a product or service or its advertising is misleading, identify which characteristics may be misleading and whether the average consumer might be misled by it. Ideally, don’t sail too close to the wind. It’s best to avoid upheld ASA adjudications on claims which matter to you and judicial reviews are a remedy of last resort, and they’re expensive and rarely won!

CityFibre is considering an appeal so look out for further developments on the concept of the “average consumer”.