O2 fails in “best coverage” claim

The question

What evidence is required to claim that a mobile network has the “best” coverage in the UK?

The key takeaway

Any claims in ads involving claims being the “best” need to be backed by robust, objective evidence and not simply subjective survey evidence. If you fail to substantiate your claims appropriately, you may be subject to sanctions by the ASA. 

The background

In a press ad in April 2020, Telefonica, trading as O2, offered a deal for the new Samsung S20 5G phone, beneath which they noted the price of the deal and that it was “On the network voted Britain’s Best for Coverage”. A logo for Uswitch was displayed in the bottom-right corner of the ad which also mentioned “Uswitch Best Network Coverage Winner 2020” in small text. A competitor, EE, complained about the ad, asserting that comparative claims about network coverage should be based on objective technical evidence rather than consumer surveys and challenged whether the claim “On the network voted Britain’s Best for Coverage” was misleading.

O2 disagreed with EE’s assertion, and argued that, while technical tests could be run to test the strength of a carrier’s coverage (although this varied depending on time of day, load of the network etc.), they weren’t always the best objective measure of a consumer’s experience nor provide definitive results. In addition, O2 argued that subjective consumer experiences on coverage were real and valid evidence of coverage. O2 also mentioned that it had won the award four times in a row and argued that the claim would not be misleading, as it reflected real and valid consumer experiences. O2 also argued that the claim was not comparative and believed that the claim was a “superiority claim” over an “objective superiority claim”, meaning it was purely subjective to O2’s network and not objectively against all network providers. Superiority claims only have to be supported by evidence, not objective technical evidence, and O2 believed it had provided said evidence through the Uswitch survey.

The development

Despite O2’s arguments the ASA saw things differently and upheld EE’s claim. It believed that consumers would understand the claim with the Uswitch logo meaning that O2 had won the best network for coverage category at the Uswitch awards. Because the word “best” had been used, this would be considered to be a comparative claim against the rest of the market and that consumers would expect it to be supported by objective data.

CAP Code rule 3.35 requires that comparisons with competitors must objectively compare one or more material, relevant, verifiable, and representative feature of those products and the ASA considered that the comparison by O2 would have to involve an objective component beyond solely customers’ subjective perceptions of their own networks. Evidence here could therefore include objective performance measures of a range of networks which shows that O2 received the highest score in testing.

The ASA determined that the survey only required that consumers evaluated their own network provider on coverage and that the questions were very broad and unclear. Overall, the data only showed highly subjective experiences and it was not clear how they could be compared in an objective, meaningful way to determine the “best” network. Because of this the ASA decided that the survey was not sufficient evidence. As such the ad was determined to be misleading since consumers would expect the claim to be based on an objective comparison of O2’s network coverage with their competitors, which is also required by the CAP Code. As the claim was misleading it breached the CAP Code.

Why is this important?

The ruling is another reminder to retain robust, objective evidence for any claims involving the “best” of anything in advertising. Subjective surveys might not be sufficient evidence to showcase an objective reality of the “best” attributes of a network (or other similar services), so advertisers will need to keep this in mind if any campaigns involving these types of claims are contemplated. 

Any practical tips?

Make sure to review any claims in your ads in detail to ensure that no unsubstantiated claims are made, especially if they involve claims for the “best” of anything, since the ASA’s bar for provenance is high here. If you want to make any such claims, ensure that robust, objective evidence is collected, which can include technical comparisons that can be compared directly and objectively.

Finally, consider this…the ruling might just be the start of the end of the use of consumer surveys to substantiate superlative product or service claims. Noting the “objective” requirements of the relevant test (under CAP Code section 3.35), it would seem that such surveys may well be unlikely to be sufficient on their own (ie without technical substantiation) to support these types of claims. 

Winter 2021