Complaint: 10/625

Vodafone Website Advertisement

Details

Complainants
D. Robinson
advertisers
Vodafone
Year
2010
Media
Digital Marketing
Product
Telecommunications
Clauses
Decision
Not Upheld
ASA Links
Website Listing
Decision Document

Document


DECISION

Meeting 8 December 2010


Complaint 10/625



Complainant: D. Robinson
Advertisement: Vodafone New Zealand Limited

Complaint: The website advertisement for Vodafone advertised the mobile phone Google Nexus One. The advertisement stated "Nexus One is the first Smartphone in New Zealand to use the Google Android 2.1 operating system".

Complainant, D. Robinson, said:

Type: Website
Where:http://www.vodafone.co.nz/shop/mobileDetails.jsp?skuld=sku8540042&voucherCode=&selectionKey=mobile&menuKey=mnit240 0019
Who: Vodafone NZ
Product: Nexus One

Complaint -
Vodafone not stating fully what operating system a phone runs

The product page for the Nexus One phone
(http://www.vodafone.co.nz/shop/mobileDetails.jsp?skuld=sku8540042&voucherCode=&selectionKey=mobile&menuKey=mnit2400019) states "Google Android 2.1operating system". This is not 100% correct. It does indeed run Android but the Android Operating System comes modified by Vodafone NZ to lock the phone to Vodafone.

What does locking mean in this instance?
It means that Vodafone NZ (though from what I can gather VF UK/Global do the testing) controls when the updates are released to the phone. Currently VF has approved up toAndroid 2.2 for the Nexus One phone. Google has released Android 2.2.1 for the NexusOne and I have read about the 2.2.1 update online (and there is one fix I really wantin it). Yet phones which are locked by VF NZ are unable to receive this update even though Google and other news sources are saying that 2.2.1 is released and that phones should automatically update.

Vodafone are not fully informing the customer about the operating system that is running on the phone. I brought this phone assuming that I would get updates as soon as Google released updates to Android, not after an undefined time when VF feels like it. There is no where that it says that I have to wait for VF to release/approve the updates and that Android Operating system installed on the phone is customised by Vodafone and that Vodafone controls when and what you can receive updates in the way of updates.

Outcomes:
Either:
* VF unlocks all phones to receive updates as soon as the hardware manufacture and/or operating system company releases an update.
* VF clearly states on their site and other advertising material that phones run a VF customised version of the operating system and that they control when updates are released and that users maybe exposed security holes for an indefinite amount of time after the a fix has been released and virus writers are exploiting these flaws. Also give a full no questions asked refund and no termination fees to anyone who has brought a locked phone.


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 Limited, said:

Thank you for your 26 November letter reminding us that we have yet to respond to your 4 November letter inviting our comments on D. Robinson's above complaint. We apologise for our delay.

D. Robinson takes issue with the statement on our website "Nexus One is the first Smartphone in New Zealand to use the Google Android 2.1 operating system". D. Robinson believes that Vodafone has modified the Google Android 2.1 operating system so that the phone is "locked to Vodafone", meaning "from what he can gather" that updates released by Google will not be available to him until Vodafone feels like it He is particularly concerned about update 2.2.1, which he implies will secure the Nexus One from exposure to a security hole. He understands that update 2.2,1 has been released by Google, and would have automatically been applied to his device had Vodafone NZ not locked it, leaving his handset vulnerable to viruses.

D. Robinson is mistaken on the facts, but even if he were not, our view is that our web page does not breach Rule 2 of the Code of Ethics - truthful presentation. Our website statement does not mislead, directly or by implication, abuse consumer trust, or exploit consumer lack of experience or knowledge. When we state that "Nexus One is the first Smartphone in New Zealand to use the Google Android 2.1 operating system", we mean just that. The statement, the only reference to the Google Android operating system on the web page D. Robinson cites, cannot reasonably be interpreted as representing or implying that the Google Android 2 Operating system in the Nexus One devices we sell will automatically update as and when Google releases updates. If D. Robinson reads online that update 2.2.1 has been released by Google, and that all devices including the Nexus One he has purchased from Vodafone will automatically update, then a complaint may lie against whoever made those statements. But Vodafone makes no such claim, either expressly or by implication. Vodafone states only that "Nexus One is the first Smartphone in New Zealand to use the Google Android 2.1 operating system". As indeed it is.

In fact the Nexus One device is not "locked" to Vodafone NZ, and neither Vodafone NZ nor its owner the Vodafone Group can stop Nexus One devices receiving Google Android 2 operating system updates. But only devices purchased directly from Google via the now defunct google.com/phone website have software completely built and maintained by Google. Software in devices purchased from operators like Vodafone is built and maintained by the device manufacturer. HTC manufactures the Nexus One we sold D. Robinson, not Google. HTC builds a variant of Google code for operators and submits that code to operators for testing and approval. Once operators approve the variant, HTC submits it back to Google for approval, Google then pushes the software to all Nexus One devices, irrespective of where they were purchased and the network to which they are currently connected.

Software based upon Google's 2.2.1 update was approved by Vodafone in early November and sent to Google for Google approval and push. Google's push was delayed to incorporate a fix for a well publicised issue where Android Market apps store could disappear after a device update.

Vodafone works closely with Google and HTC to ensure that the latest releases of the operating software for devices such as the Nexus One device are issued as soon as possible. We have been assured by Vodafone Group, our owner, that Vodafone is pressuring Google to release update 2.2.1 for HTC devices like Nexus One. As outlined in this letter, the nature of the software update process is such that devices purchased from operators like Vodafone will always be behind D2C (direct to consumer) devices purchased from Google. Vodafone has of course no interest whatsoever in a gap between releases for Google D2C devices, and releases for devices sold by us, and we are working hard to close it.

Please contact us if you require any further clarification on any matters raised in this letter.


Deliberation

The Complaints Board read all the relevant correspondence and viewed a copy of the advertisement. It noted that the Complainant, D. Robinson, considered that the advertisement was misleading as "Vodafone are not fully informing the customer about the operating system running on the phone". The Complainant was of the view that it would get updates as soon as Google released them not when Vodafone decided to release or approve them. The Complainant said that there was a new update that Google had released being the Android 2.2.1 for the Nexus One but considered that Vodafone New Zealand had locked the phones resulting in the Complainant being unable to receive the update until Vodafone approved it.

The Chairman directed the Complaints Board to consider the complaint with reference to Rule 2 of the Code of Ethics. Rule 2 required the Complaints Board to assess whether the advertisement contained any statement or exaggerated claim which was misleading or likely to mislead the consumer.

As in all cases, the Complaints Board said that where a claim in an advertisement was challenged by a complainant, the onus fell on the Advertiser to provide the Complaints Board with substantiation of that claim.

Turing to the advertisement, the Complaints Board noted the explanation provided by the Advertiser with regard to the claim made in the advertisement, where it stated "The statement, the only reference to the Google Android operating system on the web page D. Robinson cites, cannot reasonably be interpreted as representing or implying that the Google Android 2 Operating system in the Nexus One devices we sell will automatically update as and when Google releases updates. If D. Robinson reads online that update 2.2.1 has been released by Google, and that all devices including the Nexus One he has purchased from Vodafone will automatically update, then a complaint may lie against whoever made those statements. But Vodafone makes no such claim, either expressly or by implication. Vodafone states only that "Nexus One is the first Smartphone in New Zealand to use the Google Android 2.1 operating system". As indeed it is."

The Complaints Board reiterated that its role was to review the advertisement in light of the complaint received and the Code it was required to comply with. It agreed with the Advertiser that the claim in the advertisement was not misleading, as the Nexus One Smartphone on offer by the Advertiser was the first Smartphone to use the Google Android 2.1 operating system, reflecting exactly the claim being made in the advertisement. It further noted that the advertisement did not state that the Nexus One device would automatically update as and when Google released updates.

The Complaints Board further noted the response provided by the Advertiser with regard to the issue that the Complainant raised that the Nexus One device is locked by Vodafone New Zealand, where it stated "In fact the Nexus One device is not "locked" to Vodafone NZ, and neither Vodafone NZ nor its owner the Vodafone Group can stop Nexus One devices receiving Google Android 2 operating system updates. But only devices purchased directly from Google via the now defunct google.com/phone website have software completely built and maintained by Google. Software in devices purchased from operators like Vodafone is built and maintained by the device manufacturer. HTC manufactures the Nexus One we sold D. Robinson, not Google. HTC builds a variant of Google code for operators and submits that code to operators for testing and approval. Once operators approve the variant, HTC submits it back to Google for approval, Google then pushes the software to all Nexus One devices, irrespective of where they were purchased and the network to which they are currently connected. Software based upon Google's 2.2.1 update was approved by Vodafone in early November and sent to Google for Google approval and push. Google's push was delayed to incorporate a fix for a well publicised issue where Android Market apps store could disappear after a device update."

The Complaints Board said that the onus was on the Advertiser to substantiate the claim being made in the advertisement and, was of the view, that the Advertiser had discharged this onus. The Complainants Board considered that the claim subject to the complaint was not misleading and, accordingly, ruled that the advertisement did not breach Rule 2 of the Code of Ethics.

Accordingly, the Complaints Board ruled to not uphold the complaint.

Decision: Complaint Not Upheld