In Cityfibre Ltd, R (On the Application Of) v The Advertising Standards Authority Ltd & Anor [2019] EWHC 950 (Admin), the High Court rejected a claim for judicial review of an ASA decision. Cityfibre challenged the ASA’s Council Decision of November 2017 that advertisements referring to part-fibre broadband services as “fibre” broadband services are unlikely to mislead consumers.
The judge considered the four main technologies used to deliver broadband services: ADSL, fibre to the cabinet (FTTC), cable and fibre to the premises (FTTP). Only FTTP is full fibre, FTTC and cable are part fibre.
Cityfibre, a wholesale provider of full fibre services, argued that full fibre is objectively superior to part fibre and therefore a provider of part-fibre services should not be able to advertise its broadband service using the word “fibre” without making it clear in the advertisement that the broadband service is part fibre. It said that if an advertiser failed to do so, the advertisement would be materially misleading.
The ASA regulates advertising in the UK and has been the subject of judicial review cases before. The court referred to previous cases establishing that the ASA is a specialist body, its principal task is to enforce the advertising codes and it has over 50 years of experience. To establish a successful judicial review, the ASA would have had to have made an error of law, and/or been irrational. The court considered the advertising codes as well as the meaning of “average consumer” under the Consumer Protection from Unfair Trading Regulations 2008 SI 2008/1277 as well as the underlying Unfair Commercial Practices Directive 2005/29/EC.
The court also considered the sector background, including guidance and comments from Ofcom, the government and consumer watchdogs. It also considered a previous ASA review of the sector which concluded that few complaints were received about “fibre” claims compared with price, speed and lack of availability of a service. The ASA also carried out follow-up detailed research to establish what consumers understood by the word “fibre” in the context of fibre advertising and to understand whether the inclusion of the word “fibre” in broadband advertising shaped consumers’ views of the performance of specialist packages and if so, in what ways. The research showed:
- The term ‘fibre’ was not one of the priorities identified by participants when choosing a broadband package; it was not a key differentiator.
- The word ‘fibre’ was not spontaneously identified within advertisements – it was not noticed by participants and did not act as a trigger for taking further action. It was seen as one of many buzzwords to describe modern, fast broadband.
- Once educated about the meaning of fibre, participants did not believe they would change their previous purchasing decisions; they did not think that the word ‘fibre’ should be changed in part-fibre advertisements.
Following that, the ASA published its November 2017 Decision.
The judge said that it was clear that the ASA had neither made an error of law, nor acted irrationally and therefore the claim was dismissed.
The ASA has welcomed the ruling. Cityfibre has said that it is considering an appeal.
