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Home Rulings MWEB / FIBRE (FTTH) UNCAPPED DATA 20/20 MBPS / MATHYS PRETORIUS / 2018 – 7182F

MWEB / FIBRE (FTTH) UNCAPPED DATA 20/20 MBPS / MATHYS PRETORIUS / 2018 – 7182F

Mr Pretorius lodged a consumer complaint against the respondent’s website accessed at https://www.mweb.co.za/internet-connection/fibre/vumatel/uncapped-fibre/20mbps-20mbps-uncapped-fibre.aspx?promo=fibre-free-setup. The advertising promotes several Fibre packages and states, inter alia, that: 

"Uncapped Data + 20Mbps

20Mbps gives users a fast, really fast & uninterrupted online experience, so say goodbye to buffering & slow speeds. For users who prefer not to have a set monthly data limit & is ideal for frequently connected users who are more active online & are downloading files, uploading content, streaming music & video, making VoIP calls or gaming online.

This product includes

·         FREE MWEB Talk number (VoIP)

·         Tech Support 365 days a year

·         2GB mailbox with 4 additional aliases

Fibre Terms & Conditions

T&Cs apply: Pricing includes VAT. Line speeds quoted are best effort and represent "up to" speeds. MWEB reserves the right to enforce its Acceptable Use Policy.

COMPLAINT

The Complainant argued the claim "Uncapped Data” was misleading because the impression is created that uncapped means that you will be not be "capped", and by throttling the speed at a certain usage cap is another way of capping. The Complainant argued that although the claim "uncapped data” is subject to Acceptable Use Policy, General terms and conditions, and Fair Use Policy (found in section 8) do not inform the consumers that the "Uncapped" packages will be throttled at a certain usage of data. The Complainant also submitted that the term "cap" used for throttling is also not specified or declared on the website.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaint Clause 4.2.1 of Section II (Misleading claims) was taken into consideration.

RESPONSE

The Respondent submitted that in compliance with the ruling of the ASC in the matter MWEB Uncapped ADSL / Roxo and Another / 21850, it amended its website by including the definition of the words "uncapped” and "throttle” in its DSL and  Dial-up Service Terms. However, it indicated that the definitions of "uncapped” and "throttle” were omitted in error, but they have since amended the terms and conditions tom include the definitions thereof.

ASA DIRECTORATE RULING

The ASA Directorate has considered all the relevant documentation submitted by the parties. 

Clause 4.2.1 of Section II stipulates that "Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer”.

The Directorate would usually be wary about an amendment of a potential misleading advertisement by an amendment to the terms and conditions, but in this case there are two factors that change this:

  • In the cited matter of MWEB Uncapped ADSL / Roxo and Another / 21850 (15 May 2014), the ASC found that, "The banner headline of the advertisement reads "get uncapped ADSL" terms and conditions apply subject to AUP. A review of the terms and conditions does not deal with what is meant by "uncapped" so that the reasonable hypothetical consumer is not aware at this point what is meant by "uncapped". In the committees view this omission of definition of "uncapped" in the terms and conditions is likely to mislead consumers and in the committees view it would be a fairly simple issue to insert a definition in the terms and conditions so as to avoid confusion.” For the purposes of clarity of rule and fairness, the ASA operates on a system of precedent and the Directorate will not, without good cause and differentiation, differ from a ruling of the ASC.
  • The Complainant himself raised the lack of clarity in the terms and conditions as part of his complaint, indicating that he would expect the word "uncapped” to be explained in those terms and that he would consider it reasonable for a consumer to have reference thereto in understanding the advertising.

The ASA has a long-standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, the undertaking may, at the discretion of the ASA, be accepted without considering the merits of the matter.

The Respondent has indicated that it has amended the advertising in question by inserting definitions of "uncapped” and "throttle” in the terms and conditions. For the reasons set out above, the Directorate accepts this as addressing the complaint before it.

It is therefore accepted on condition that the terms and conditions are immediately amended.

The Respondent’s attention is also drawn to the provisions of Clause 15.5 of the Procedural Guide, which effectively requires it to withdraw the advertisement in question from any and all media in which it may appear.

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