Vodafone Website Advertisement
Meeting 9 December 2009
Complainant: R. Hunt
Advertisement: Vodafone New Zealand Limited
Complaint: The website advertisement for Vodafone contained a heading which said "What is the difference in speed between 3G broadband and dialup?" Text beneath this said:
"The speeds of 3G broadband are up to 50 times faster than dial up. With the 3G broadband 3.6Mbps network, you will experience peak speeds of 3.2Mbps and average speeds of between 800kbps and 1.4Mbps.
As 3G broadband products are backwards compatible you will able to take advantage of Vodafone's 3G network, proving download and upload speeds up to 384kbps. You can also use GPRS where 3G coverage is unavailable."
Complainant, R. Hunt, said:
Where: Went to Vodafone's website and saw they stated download speeds of between 800 KB/Sec and 1.4 MB/sec
Who: Vodafone Mobile Connect
Product: 3G Download speeds
I have NEVER had download speeds any where like what they advertise and think because I have an excellent signal they have misled me with their adverts. I have contacted them about this and they don't think there is a problem. I feel I have been misled and have not received what they advertise or what I have been paying for."
The Chairman ruled that the following provision was relevant:
Code of Ethics
Rule 2: Truthful Presentation - Advertisements should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the consumer, makes false and misleading representation, abuses the trust of the consumer or exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is not considered to be misleading).
The Advertiser, Vodafone New Zealand Ltd, said:
"Thank you for your letter..
The complaint concerns the following statement on the Vodafone website: "With the 3G 3.6Mbps network, you will experience peak speeds of 3.2mbps and average speeds of between 800kbps and 1.4Mbps" (Statement). The Statement was generated internally by Vodafone New Zealand Limited (Vodafone). No third party advertising agency was employed.
The complainant notes that he has "never" experienced download speeds of this level, and that he has an "excellent signal". Accordingly, the complainant believes that the Statement is misleading.
We have investigated download speeds for the complainant's address at 248 Riddiford Street, Newtown, Wellington (Address). It appears that the Address is situated at the border of three cell sites. Our technology team has concluded that a likely explanation for the poor download speed is a cell dominance issue in this area. The Low signal quality was noted on drive by tests between Gordon and Army Streets on Riddiford Street, where the Address is situated.
To clarify the representations made on our website, the Statement is followed by a paragraph which reads: "Speeds may vary depending on coverage, location, network traffic and the type of data being transmitted".
Further, the Statement promises "average speeds of between 800kbps and 1.4Mbps" (emphasis added). We are confident that these average speeds can be substantiated when measured as intended across the Vodafone New Zealand 3G network. Some customers will experience much higher average speeds than the 800kbps - 1.4Mbps range. Some customers in some locations across the network like the complainant at the Address will suffer from poorer signal quality and slower download speeds than the range stated.
We consider that Rule 2 of the Code of Ethics was not breached. While delivery of excellent signal quality and download speeds is a priority for Vodafone, regrettably some gaps in our network still remain. We are committed to continual improvement of our network.
While we do not consider that the Statement is misleading or deceptive, we recognise that the complainants concerns were not sufficiently addressed prior to this complaint to the ASA.
We are endeavouring to resolve the ongoing coverage issues at the Address. We are undertaking a tower speed drive/walk test in the area today (27 November 2009) to confirm the drive test results and quality of the signal levels at the Address. Based on the results of this test, we will then be in a position to assess the feasibility of optimising the network to improve the quality
Please contact me if you require any further clarification on any matters raised in this letter."
The Complaints Board carefully read all correspondence relevant to the complaint, and viewed a copy of the advertisement. It noted that the Complainant, R. Hunt, was of the view that the advertisement misleading as they were a Vodafone customer and had not been able to access download speeds at the rates promoted.
The Chairman directed the Complaints Board to consider the complaint with reference to Rule 2 of the Code of Ethics. This required the Complaints Board to consider whether or not the advertisement contained anything which, either directly or by implication, ambiguity or omission, would be likely to deceive or mislead.
Turning to the advertisement the Complaints Board noted where it said "...you will experience peak speaks of 3.2Mbps and average speeds of between 800kbps and 1.4Mbps" [emphasis added]. It also noted where the advertisement said "Speeds may vary depending on coverage, location, network traffic and the type of data being transmitted". The Complaints Board observed that the claims of broadband speed in the advertisement were qualified by the text "average speeds", which it said implied that while on average these speeds would be available, users would experience speeds both higher and lower than those mentioned. Further, it noted the qualification "Speeds may vary depending on..." and the variety of factors listed.
The Complaints Board then observed the Advertiser's response where it explained why the Complainant was currently not able to access high speed broadband through Vodafone, and also where it detailed the steps being taken to address the problem.
The Complaints Board was of the view that, although it was unfortunate that the Complainant did not experience broadband speeds they desired, there was nothing in the advertisement itself which made any absolute claim regarding broadband speeds available to all customers that was likely to deceive or mislead consumers. Accordingly, it ruled that the advertisement was not in breach of Rule 2 of the Code of Ethics.
The Complaints Board ruled to not uphold the complaint.
Decision: Complaint Not Upheld