ASA Rules Against Vodacom's False 1.8 MB/s HSDPA Speed Claims

Vodacom 3G / DJ Dawkins & Another / 8207 / 8285
Ruling of the : ASA Directorate
In the matter between:
Dennis J Dawkins Mark Hupertz Complainant(s)/Appellant(s)
Vodacom Service Provider Company (Pty) Ltd Respondent

01 Mar 2007

Consumer complaints were lodged against Vodacom’s print, radio and television advertising for its 3G with HSDPA data card.

The advertising claims, inter alia, that this product is “faster than ADSL” and functions at a speed of “Up to 1.8 Megabits per second…”.

COMPLAINTS
In essence, the complainants submitted that the possibility of connecting at the claimed 1.8 Megabits per second is impossible to achieve. The second complainant specifically mentioned that the claim of being faster than ADSL should imply that the majority of customers enjoy such speeds. However, this is not so.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaints the following clauses of the Code were taken into account:

• Section II, Clause 4.1 – Substantiation

• Section II, Clause 4.2.1 – Misleading claims

• Section II, Clause 4.5 – “Up to…” and “from…” claims

RESPONSE
The advertising agency FCB South Africa, on behalf of the respondent, submitted, inter alia, that the basis of the complaints are:

• Whether 3G HSDPA offers speed of up to 1.8Mbs; and

• Whether 3G HSDPA is faster than ADSL.

Regarding the claim that its 3G HSDPA product is “faster than ADSL”, the respondent is aware that Telkom recently launched an improved DSL product, and therefore it undertakes to remove that claim from all future advertising material.

Regarding the claim of “Up to 1.8 Megabits per second, the respondent submitted a letter from Mr Jannie van Zyl of Omnisolutions, and argued that Mr van Zyl qualifies as an expert in the field to which the claims relate. The contents of Mr van Zyl’s submissions will be discussed more fully below.

Finally, the respondent argued that a hypothetical reasonable person would not expect ideal download speeds unconditionally. However, it undertakes to insert a disclaimer to state that the data speed of up to 1.8 Mbs is achievable “under ideal conditions”.

ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.

The following constitutes the basis of the complaints:

* Whether the respondent’s product is “faster than ADSL” and
* Whether the claim “up to 1.8 Megabits per second” is substantiated.


“faster than ADSL”
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, the undertaking is accepted without considering the merits of the matter.

The respondent submitted that the claims relating to 3G HSDPA being faster than ADSL will be removed from future advertising material.

The undertaking is therefore accepted on condition that this claim is withdrawn in its current format within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.

“Up to 1.8 Megabits per second”
With regard to this issue, the respondent offered two things: an undertaking to include a disclaimer that this speed is achievable “under ideal conditions” and documentation from a Mr Jannie van Zyl from Omnisolutions, which it believes substantiates the claim.

As far as the added disclaimer is concerned, the Directorate does not believe that this would take the matter any further for two reasons:

* When asked whether this disclaimer would be included in all its advertising, the respondent, in an email dated 13 February 2007, confirmed that it would only be in “print ads”. This means that the clarification (if any) is only made in print advertising, and not in other media where this claim appears.

* In addition, the Directorate notes that such a disclaimer is already present in some print advertising in a small font at the bottom of the back page of a large, foldout brochure. If anything, such disclaimers would only serve to correct a misleading impression already created by prominent claims in the advertising. In addition, it is unlikely that most people will notice the disclaimer.


For the above reasons, the Directorate is not satisfied that inserting this disclaimer in all print advertising would address the concerns.

The remaining question is therefore whether this claim is substantiated in terms of Clause 4.1 of Section II of the Code. It must also be born in mind that the claim reads “Up to 1.8 Megabits per second” (our emphasis). Accordingly, Clause 4.5 of Section II of the Code is relevant.

The respondent firstly submitted that variables such as coverage, contract type and configuration, terminal type and configuration, and network layout and service providers all impact on the end-user speed experienced. In addition, the respondent relied on the submissions from Mr van Zyl.

The Directorate is satisfied that Mr van Zyl appears to be acting as an educated consumer and user of the respondent’s service. As such, his comments essentially serve as a testimonial.

Mr van Zyl states that he owns an “Automation Consultancy company” and uses the respondent’s Vodacom 3G HSDPA card “exclusively as [his] connection to the internet…”. He also submits that he does “[His] own performance tests around the country and [has] kept some of the results”. The results submitted to the Directorate were obtained in Midrand, Gauteng.

Mr van Zyl submitted that during the full duration of the tests that he conducted the test speed was an average of 1.73 Megabits per second (Mb/s) and in many instances did run at 1.8 Mb/s. A similar test conducted in Cape Town delivered the same results.

While this does appear to offer some support for the claim, the Directorate has some concerns:

In the advertising before the Directorate the claim of speed is the overpowering and most prominent advertising message. This is done by, inter alia, presenting the data card as a rocket and using a speedometer to indicate how this product delivers in the red “Vodacom Speedzone”. The commercials feature upbeat and fast-moving music. These factors create an overall impression that the user can expect incredible speeds on this particular product, and that this is what differentiates it from competitors.
Clause 4.5 of Section II clarifies that advertisers may not use “Up to…” claims “where it does not apply…to more than an insignificant proportion” of consumers.

The documentation submitted by the respondent appears to indicate that the claimed speeds of up to 1.8 Mb/s are achievable. However, there is nothing before the Directorate to indicate that this does not apply to only an “insignificant proportion” of customers who use the product.

In addition, the “Data Coverage Map” on the respondent’s website indicates areas where there is 3G HSDPA coverage in South Africa. It is interesting to note that only a portion of Gauteng, Durban and the Western Cape, along with scattered areas in the other provinces appear to enjoy HSDPA coverage. Even within “covered” areas, coverage varies, with different parts of the same street often showing a different coverage profile. Furthermore, from the material available, it appears that the HSDPA speeds are often compromised by, inter alia, heavy use, which means that users are connected at the significantly slower 3G, EDGE or even GPRS speeds.

It is accepted that the hypothetical reasonable person would understand connectivity might ebb and flow, based on real world conditions. The hypothetical reasonable person would, however, expect to regularly receive the claimed speeds if they are subscribed to this service and have the required technology. There is nothing before the Directorate to unequivocally confirm that a significant number of people can achieve this speed under reasonable circumstances.

The claim is therefore currently unsubstantiated and in breach of Clause 4.1 of Section II of the Code. In addition, the claim contravenes Clause 4.5 of Section II of the Code.

Given the above finding:

* The claim 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 in future until new substantiation is submitted, evaluated and a new ruling is made.
The complaint is partially upheld.

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