Rechtsanwalt, Legal Director
Out-Law News | 23 Jul 2012 | 2:18 pm | 1 min. read
The watchdog said BSkyB's (Sky's) claims, which were made in adverts on TV, in the press and on the sky.com website, were not in breach of UK advertising rules. ASA dismissed complaints about the ads made by rival ISP Virgin Media.
ASA said that because Sky itself had not put any restrictions on its service, its 'totally unlimited' claim was not exaggerated and could be substantiated. Its decision was made on the basis of Sky's own explanation of its claims within the ads and on what it thought consumers' perception of Sky's claims would be.
"We noted that there were inherent limitations in any network, which would limit a consumer's actual broadband speed and therefore the amount of data that a consumer could download over a particular period of time," ASA said in its adjudication. "Some of these limitations, such as signal attenuation, resulted in a greater loss of speed for DSL services compared to fibre-optic services."
"However, we considered that consumers would understand that the claim 'totally unlimited' referred to provider-imposed limitations, especially traffic management policies. We did not consider that the average consumer would infer that 'totally unlimited' meant the broadband service was free from the inherent limitations found in the network," it said.
"Because we considered that the average consumer would understand from the ads that "totally unlimited broadband" meant there were no provider-imposed limitations or restrictions on usage, we concluded that the claim was not misleading," the watchdog added.
Last year the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP), the bodies responsible for writing the UK's advertising rules, issued guidance over the appropriate use of the term 'unlimited' when describing access to an internet service provided by an ISP.
The Committees' guide said that marketing communications carrying 'unlimited' claims are likely not to mislead the average consumer "if they do not restrict or limit a service in a manner contrary to the average consumer’s expectations of an 'unlimited' service".
"'Unlimited' claims are likely to be acceptable provided that the legitimate user incurs no additional charge or suspension of service as a consequence of exceeding any usage threshold associated with [a fair usage policy], traffic management policy or the like; and provider-imposed limitations that affect the speed or usage of the service are moderate only and are clearly explained in the marketing communication," the guide said.
The CAP Code sets out rules for print, poster and online advertising, whilst the BCAP Code sets the rules for ads broadcast on television and radio. Both Codes prohibit ads that are misleading, whilst marketers' claims about products or services that have been exaggerated and cannot be substantiated are also barred.
Rechtsanwalt, Legal Director