ASA Ban Three UK’s Misleading Mobile “all-you-can-eat data” Adverts

Mobile operator Three UK’s long standing promotions of “all-you-can-eat data” on their top 4G tariffs have been branded “misleading” by the Advertising Standards Authority (ASA) after two people complained that restrictions were applied to their use (e.g. Tethering cap).

Several website promotions and an online display advert, all of which featured the promise of “all-you-can-eat data“, were highlighted by the complainants. One of the complainants claimed that Three UK restricted the amount of data that could be used during peak periods and the other reported being cut off after using 4GB of mobile data (Tethering). However Three UK defended itself by saying that the claim was not the same as “unlimited“.

The operator, which also said that “99% of P2P services facilitated illegal downloads” (not sure where they got that figure from, but perhaps they’ve not used XBox Live, Steam, World of Warcraft or Microsoft Updates etc.), added that its TrafficSense system allocated a certain amount of bandwidth at peak times (3pm to midnight) to peer-to-peer (P2P) file-sharing and Tethering.

In practice, Three UK said their peak time bandwidth allocation for P2P only applied to “illegitimate file sharing” at peak times and on average 14,000-15,000 customers (out of a customer base of around 8.8 million) undertook file sharing at peak times. But the operator also said they could not guarantee that a legitimate user would never be affected at peak times if they engaged in lawful P2P activity.

As for the 4GB cut-off complaint, Three said that, unlike some other operators, they allowed Tethering on their “all-you-can-eat” plans, although at the time the ad was seen it was indeed subject to a limitation of between 4GB and 12GB depending on the type of plan. Three UK believed that this was made clear in the adverts, although the ASA disagreed.

ASA Ruling (REF: A15-308458)

4GB Cap Complaint

With regard to ads (b) and (c), we understood that the complainant who had been cut off after using 4GB of data had been using their allowance for tethering … We considered that, where tethering was allowed, a limitation on the amount of data that could be used in this way, even if made clear as part of a transactional journey or in another part of an ad, contradicted the claim “All-you-can-eat” by representing an immoderate restriction on legitimate data use, and that the presence of the cap should therefore have been part of the headline claim.

Traffic Management Complaint

While we acknowledged that legitimate use of P2P technology identified by consumers would be ‘whitelisted’, we were concerned that legitimate services not yet identified by customers (who may not know to do so) or notified to Three would therefore be subject to traffic management. Consequently, we considered that Three could not demonstrate that TrafficSense solely slowed down illegitimate users and were concerned that a number of legitimate users could also be adversely impacted by the policy.

In light of that, we considered that Three needed to show that the slowdown experienced by those subject to traffic management was moderate only. We noted, however, that Three had not provided any evidence to demonstrate the impact of the policy on their users. Further, we noted that Three had themselves acknowledged that the effect of TrafficSense on P2P users was likely to be significant. In the absence of adequate evidence to show that all P2P users on their network were illegitimate, or that the impact of TrafficSense on those affected was moderate only, we considered that Three were not able to substantiate the claims that their service was ‘all you can eat’ and concluded that the ads were misleading.

As usual the ASA banned the adverts in their current form and warned Three UK to ensure that future ads did not use “unlimited data” claims, including “all-you-can-eat data,” unless they could “demonstrate that TrafficSense only affected illegitimate use of the service or that any effect on legitimate use was moderate only”

The ASA also told Three UK that any caps on Tethering use as part of otherwise unlimited data plans must in future be included in the headline claim.

Separately the ASA upheld a number of complaints for several other Three UK adverts after they were found to be “unsuitable for viewing by children” (here), although this isn’t a strictly telecoms or broadband related complaint and so we won’t summarise it.