Cell C Mobile Broadband / L Van Zyl / 16568 (ASC)
Ruling of the : Advertising Standards Committee
In the matter between:
Cell C (Pty) Ltd Complainant(s)/Appellant(s)
Miss L Van Zyl Respondent
31 May 2011
At a meeting held on 22 February 2011, the Advertising Standards Committee (“the ASC”) considered an appeal by Cell C (Pty) Ltd (“Cell C”) against a ruling of the Directorate dated 2 December 2010 in which the Directorate upheld a complaint by L van Zyl (“Van Zyl”) against Cell C’s advertisement of its broadband Internet products.
The advertising states inter alia the following:
“A once-off payment of R2,999 (incl VAT) gets you:
a Cell C branded USB Speed Stick (capable of data speeds of up to 21,6 Mbps for downloading and 5,76 Mbps for uploading)
a Cell C SIM card 5GB of data each month for 12 months
By once-off payment we mean that you pay R1,499 for 2GB or R2,999 for 5GB and you automatically receive 2GB/5GB of data every month for 12 months”.
Cell C was represented at the meeting of the ASC and made oral submissions. There was no representation for Van Zyl.
THE COMPLAINT
Van Zyl says that she has purchased the advertised product. She has not, however, been able to achieve more than 10% to 15% of the advertised speeds. She has experienced download speeds in the region only of 2 to 3 Mbps and upload speeds of around 1 Mbps. Her reading of relevant material also show that no consumer in South Africa has been able to achieve speeds close to 21,6 Mbps as claimed. The best speeds achieved seem to be around 5 to 8 Mbps. The statements made in the advertisement are therefore misleading, making the advertisement misleading.
THE DIRECTORATE RULING
The Directorate found that on the wording of the advertisement a hypothetical reasonable person would expect to experience speeds of the kind claimed. It was, however, clear that none of Cell C’s customers who had purchased and are using the product were not achieving the claimed speeds during ordinary usage of the product. It concluded that the claims were unsubstantiated and likely to mislead. The advertisement was for this reason in contravention of Clauses 4.1 and 4.2.1 of Section II of the Code.
THE APPEAL
In the appeal Cell C first complains that the Directorate’s ruling went beyond the ambit of the complaint. It extended the ruling to other media. In this way it denied Cell C audi alteram partem. This is to say that the Directorate did not give Cell C a fair hearing. It contends that the ruling of the Directorate should be set aside on this basis alone.
As to the merits, Cell C contends in essence that its claim was limited to a hardware claim and not a service claim. It says that the consumer targeted by the advertisement is familiar with Internet connection speeds and would be aware of Cell C’s actual speeds as compared to the claimed speeds. On this basis the reasonable consumer to whom the advertisement is targeted would not believe that he or she can use the product and achieve speeds of up to 21,6 Mbps. It is clear from the advertisement that the claim relates to the hardware capability of the advertised product.
THE ASC RULING
The ASC does not review decisions of the Directorate. It hears appeals of the Directorate’s decisions. The appeal is a rehearing of the matter. The appellant or respondent is entitled to submit any evidence and submissions to the ASC. It is not limited to evidence and submissions presented to the Directorate. In this way any complaints regarding audi alteram partem at the Directorate stage is completely cured. For this reason, the decision of the Directorate which is the subject matter of the appeal in this case cannot be set aside simply on the basis of complaints about audi alteram partem even if such complaints were well founded.
The ASC disagrees with Cell C and agrees with the Directorate. The ASC is of the view that the advertisement essentially promotes the product on the basis of the claims about speed. In that regard there is a conflation of service levels as regards speed and what Cell C claims to be hardware capability claims. At the very least the advertisement should make such a distinction clear, i.e. that the claims relate to the product’s hardware capability as opposed to actual achievable speeds when consumers use the product. In the absence of such a clear distinction, and given the manner in which the advertisement is worded, a reasonable consumer, even one that is familiar with Internet connection speeds, may believe that the product can in use achieve the speeds as claimed. This is misleading. The consumer is deceived as to whether the speeds relate to achievable speeds in ordinary use of the product or is limited to hardware claims. To avoid this deception Cell C has to make a clear statement that the speed claims are limited to hardware capability and not speeds that can be achieved when using the product in South Africa.
This ruling applies to the advertisement in whatever media it is displayed.
CONCLUSION
In light of the above finding, the appeal is dismissed.
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