SolMatrix / D I Wise & Another / 9956
Ruling of the : ASA Directorate
In the matter between: Mr David I Wise Mr R J Theunissen Complainant(s)/Appellant(s)
SolMatrix (Pty) Ltd Respondent
22 Nov 2007
Consumer complaints were lodged against a Solmatrix Internet advertisement promoting its DSL Xtreme packages. The advertisement was published at
www.solmatrix.co.za.
The advertisement states, inter alia, “DSLXtreme packages provides Uncapped data traffic, subject to our Uncapped Fair Usage Policy.”
COMPLAINTS
In essence, the complainants submitted that the advertisement is misleading as the word “uncapped” implies limitless access, but the accounts do have a bandwidth limit and are therefore not uncapped.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaints Clause 4.2.1 of Section II (Misleading claims) was taken into account.
RESPONSE
The respondent, submitted, inter alia, that its service is uncapped as every customer that conforms to the “Fair User Policy” will potentially have continuous uninterrupted data transfer with no set data cap or bandwidth cap.
The respondent further submitted that it does not believe that most of the content on its website is advertising as it uses its website to interact with existing and potential customers. Most of its business processes, including opening accounts, ordering services, etc. are all conducted via its website utilising online database services.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation as submitted by the respective parties.
Jurisdiction
The Directorate notes the respondent’s concern regarding editorial content versus advertising material on its website. As the ASA only has jurisdiction over advertising, it may only consider and rule on matters relating to advertising.
It must be clarified that the Directorate does not regard all website content as advertising, only the content that meets the criteria of what constitutes an advertisement, as defined by the Code.
Clause 4 of Section I defines an advertisement as “any visual or aural communication, representation, reference or notification of any kind which is intended to promote the sale, leasing or use of any goods or services; or which appeals for or promotes the support of any cause”. It further clarifies that promotional content of display material, menus, labels, and packaging also fall within the definition.
The part of the respondent’s website in dispute is used, inter alia, to describe its products and their benefits. The page in question is solely dedicated to DSL Xtreme, its attributes and pricing. In addition, the page emphasises the “uncapped” accounts, which is used to convince the reader that this is a good product to purchase. The respondent itself confirms that the site is used to interact within “existing and potential clients” (our emphasis). This information is therefore clearly intended to promote the sale and use of this product to the respondent’s existing customers and potential ones, and therefore constitutes advertising in terms of the Code.
Based on the above, the material falls within the jurisdiction of the ASA and the Directorate may consider it.
Merits
Clause 4.2.1 of Section II states that advertisements should not contain any statement or visual presentation, which directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.
The complainants are of the opinion that the advertisement is misleading as the word “uncapped” implies limitless Internet access. However, the respondent disconnects a user if his/her data limits have been reached.
The respondent submitted that that its service is uncapped as every customer that conforms to the Fair User Policy will potentially have continuous uninterrupted data transfer with no set data cap or bandwidth cap.
In Open Web Uncapped ADSL / M B Deas and Another / 9690 (16 October 2007) where a similar issue was considered, the Directorate, taking into consideration an opinion from the Internet Service Provider’s Association (ISPA), ruled as follows:
“While ISPA accepted that some consumers might attach an incorrect interpretation to the term ‘uncapped’, it appears of the opinion that the respondent’s practice is common in the industry…The Directorate acknowledges that there is some scope for a potential customer to confuse the ‘threshold’ levels as ‘caps’, but the meaning of the limitations must be assessed in the context they appear. The claim therefore needs to be measured in the context of the respondent’s website.”
The claim “uncapped” was not ruled against, as the respondent, at worst, throttled the connection speed, but never terminated the connection entirely.
In Sentech / M Diamond / 3239 (2 November 2005) the Directorate considered the claim “unlimited” and stated “While this claim is ex facie true for the respondent’s MyWireless flexi package, the material before the Directorate indicates that it does not apply to the MyWireless classic packages, which are, by the respondent’s own admission, monitored and limited after excessive usage. The claim specifically states that the access supplied is “unlimited” with no qualifying statements as to any conditions. The reality, however, is that there are certain limitations applicable to the respondent’s services, depending on the package that one chooses.”
From the above it becomes apparent that a hypothetical reasonable person confronted with a claim such as “uncapped”, would expect never to have his connection terminated. Practices such as reducing (throttling) connection speed are often used as an alternative to capping.
With regard to the matter at hand the Directorate notes that clicking on “Uncapped Fair Usage Policy” opens a page with, inter alia, the following text:
“If, based on your chosen package, your usage in a particular month becomes excessive to the point that it will impact negatively on other users, we reserve the right to ask you to reduce the amount of data you are downloading to a minimum until the beginning of the next month. If you still need to continue with heavy downloading for the rest of the month you are welcome to purchase extra GBs of data for the purpose, or you could upgrade your package to one which is better suited to your usage requirements. Only if you ignore our reasonable request to drastically reduce your usage do we reserve the right to disable your account for the remainder of the month. Should you continuously ignore our reasonable requests to be fair in your usage of your SAIX uncapped account we reserve the right to ask you to find an alternative broadband provider” (respondent’s emphasis).
The respondent therefore monitors usage and it appears that a user is in danger of being blocked entirely from accessing Internet content once a specific amount of traffic has been transmitted. It therefore appears that there are limitations attached to usage. Such a service with limitation is usually referred as a “capped” service, as the flow of information is stopped if the user does not heed a warning to reduce usage, or if certain limits are reached.
While the Directorate accepts that the respondent may have sound business reasons for doing so, the fact remains that the product is monitored and “capped” at some point.
Based on the above the Directorate is of the opinion that the advertisement is misleading, as it appears ex facie that the service is not “uncapped” as claimed and understood by the hypothetical reasonable person.
The claim “uncapped” is therefore in contravention of Clause 4.2.1 of Section II.
Given the above finding:
* The claim “uncapped” must be withdrawn;
* The process to withdraw the claim must be actioned with immediate effect on receipt of ruling;
* The withdrawal of the claim must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and
* The claim may not be used again in its current format unless the respondent provides an uncapped service.
The Directorate wishes to draw the respondent’s attention to Clause 15.5 of the Procedural Guide which states that offending claims are to be withdrawn from every medium in which they appear, notwithstanding that the complaint did not specifically refer to that particular medium.
The complaints are therefore upheld.
.