Mweb Uncapped Internet Service / DI Wise & Another / 16148
Ruling of the : ASA Directorate
In the matter between:
Mr DI Wise Sharyn L Wise Complainant(s)/Appellant(s)
Mweb Connect (Pty) Ltd Respondent
04 May 2011
Consumer complaints were lodged against an Mweb Connect’s internet advertising promoting its Broadband ADSL Uncapped that was published on
www.mweb.co.za.
The advertised products that are a subject matter to the complaint are Uncapped products, which offers “Unlimited internet access for a fixed monthly price” varying from R219,00 to R2 359,00 per month. Some of the benefits listed include, “Don’t get cut off from your Internet”; “Use as much data as you like”; “FAST always-on internet access”; and “Ideal for video calling, downloads and running a small office”.
COMPLAINT
In essence, the complainants submitted that the advertisement is misleading as the word “uncapped” implies limitless access, but their accounts were cancelled by the respondent claiming high bandwidth usage as the reason.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II (Misleading claims) of the Code was taken into account.
RESPONSE
DLA Cliffe Dekker Hofmeyr Attorneys, on behalf of the respondent, submitted, inter alia, that the complainants’ accounts were cancelled as their usage conduct was in breach of the respondent’s “Acceptable Use Policy”.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
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 access, but their accounts were cancelled by the respondent claiming high bandwidth usage as the reason.
The respondent submitted that the complainants’ accounts were cancelled as their usage conduct was in breach of the respondent’s “Acceptable Use Policy”.
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 respondent submitted that the complainants’ access was terminated because they did not use the service for periodic active use of the internet. The complainants’ accounts were therefore not terminated based on the volume of data usage but the manner in which the accounts were used. The respondent has however not put before the Directorate specific reasons why the complainants’ services were cut. While the Directorate accepts that the respondent may have sound business reasons for doing so, the fact remains that it appears ex facie that the respondent’s uncapped 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. [
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