Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Before 1 April 2012, the existence of a fair-use policy (FUP) did not necessarily negate the claim that a telephone or internet package was “unlimited”. For example, if there was a technical limit on the amount of data that could be downloaded or if the advertiser imposed a limit on the length of the phone calls included in the “unlimited” package, it was generally acceptable to explain those restrictions in the fair-use policy. The policy itself had to be fair and reasonable, only excluding atypical users, and stated in the ad.
From 1 April 2012, CAP’s new guidance on “unlimited” claims will apply, and with it comes a significant change to the way in which fair-use policies can be applied. “Unlimited” claims are now likely to be acceptable only if any restrictions put on that unlimited service do not run contrary to what the average consumer would expect from an “unlimited” service. The new guidance does not explicitly define what a consumer might expect from the service, but suggests that any limitations the provider imposes on the speed or use of the service should not stop legitimate users from doing normal online activities like streaming content. The CAP guidance still refers to fair-use policies, but states that:
Unlimited claims are likely to be acceptable provided that:
the legitimate user incurs no additional charge or suspension of service as a consequence of exceeding any usage threshold associated with an FUP, traffic management policy or the like; and
provider-imposed limitations that affect the speed or usage of the service are moderate only and are clearly explained in the marketing communication.
So, marketers will no longer be able to use a fair-use policy or traffic management policy to slow down legitimate users to such an extent that they cannot stream content at or close to their normal connection speed, nor will they be able to impose an additional charge or suspend the service. If a fair-use policy or traffic management policy is applied in this way, it is unlikely the advertiser will be able to call the service “unlimited” (although this remains to be tested by the ASA). The new guidance for fair-use policies applies to fixed line and mobile telephony and data services, as well as similar services provided on other platforms, such as VoIP.
See the Help Note on the “Use of unlimited claims in telecommunications advertising”.
Last modified : 29 March 2012