Broadband Advertising: UK Advertising Update

Introduction

We reported in July 2011 that Ofcom, the independent regulator and competition authority for the United Kingdom communications industries, announced that the disparity between actual and advertised broadband speeds had increased, identifying the fact that actual speeds were, on average, 8.2Mbit/s slower than what had been advertised. Please click here for a copy of this Client Advisory.

The Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP), the committees responsible for writing and maintaining the advertising codes, have now released two Help Notes on the 'Use of speed claims in broadband advertising' and the 'Use of 'unlimited' claims in telecommunications advertising'. The Help Notes are not binding, but instead are intended to help the Advertising Standards Agency (ASA) interpret the advertising codes of practice for both broadcast and non-broadcast media. The ASA is the United Kingdom's independent regulator of advertising across all media, which from 1 March 2001 has included marketing on websites.

The media scrutiny around broadband advertising continues to be a hot topic in the United Kingdom. This stems from the concern that misleading advertising has fallen foul of the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008.

Use of Speed Claims in Broadband Advertising

(i) Speed Claims

The first Help Note states that where providers make a numerical speed claim that is likely to be understood by consumers as the maximum speed attainable by their service, the provider should be able to demonstrate that the speed is achievable for at least 10% of the relevant customer base. This guidance is stated to apply regardless of whether the speed claim is made in an advertising communication or as part of the name of the service.

(ii) Qualifying Speed Claims

In a move that will not entirely satisfy Ofcom, which was concerned that the term was misleading, the Help Note has confirmed that where some customers' maximum speeds fall below the advertised maximum, that figure must be prefixed with the words 'up to'. However, where factors such as traffic management are likely to significantly lower the claimed maximum speed for some customers, information on such factors should be clearly set out in the marketing material. Any qualifying wording must be expressed clearly and prominently, and must avoid technical...