The Claimant, CityFibre, an operator of fibre to the premises (ie “full fibre”) broadband infrastructure, challenged the ASA’s decision in November 2017 that advertisements referring to fibre to the cabinet services (ie part-fibre in that the last part of the connection was copper or coaxial cable rather than optical fibre) as “fibre” were unlikely to mislead consumers.
In today’s High Court ruling Mr Justice Murray dismissed CityFibre’s contention that the decision was based on an error of law (misunderstanding of the correct legal test, mandated by EU law), and was irrational (having misinterpreted the results of consumer research). He held that the ASA had correctly assessed the issue from the standpoint of the notional average consumer, who, whilst reasonably well informed and reasonably observant and circumspect, was not, on the evidence, reasonably well informed about or particularly concerned about specific delivery mechanisms. The ASA was entitled to take into account independent consumer research to supplement its own experience, and to conclude that the average consumer’s primary concerns were speed, cost, reliability (equated with speed) and data allowances, and that little significance was attached by consumers to use of the word “fibre”. Full fibre operators were in any event advantaged by recent regulatory action in respect of misleading price and exaggerated average speed claims by ADSL and part fibre providers. The ASA was entitled to be critical of CityFibre’s research, and had not misinterpreted the results of its own consumer research.
Following the Court’s decision, Rupert Earle, the Bates Wells Media Disputes Partner who advised on this matter, said:
“The judgment provides welcome guidance on application of the “average consumer” test, and illustrates that the court will have regard to the ASA’s independence and long expertise in assessing advertising”.
If you’d like to find out more about this case check out today’s judgment, which is published in its entirety here.
All content on this page is correct as of April 15, 2019.