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Home Rulings VODACOM / “SA’s BEST NETWORK FOR 3 YEARS” / MTN / 2018-7263F

VODACOM / “SA’s BEST NETWORK FOR 3 YEARS” / MTN / 2018-7263F

BACKGROUND

In Vodacom / SA’s Best Network / MTN / 2018-7227F (30 January 2018), the Directorate accepted the Respondent’s undertaking to withdraw the claim "SA’s best network” within the context of network speed, on condition that the claim was not used again in future without appropriate substantiation being available.

In Vodacom / "SA’s Best Network For 3 Years” / MTN / 2018-7263F (7 June 2018), the Advertising Industry Tribunal found that an advertisement containing the claim "SA’s Best Network* for 3 years in a row” contravened the provisions of Clause 2 and Clause 4.2.1 of Section II. The Tribunal’s Ruling stated, inter alia:

"22.   … The claim will be understood by the reasonable consumer as such with the result that the reasonable consumer will conclude that for three years in a row MTN [sic] has been voted SA’s best network, even if the consumer were to rely on the phrase in the body copy that Vodacom ‘….. remain[s] committed to living up to and exceeding [consumer] expectations….’ alone. 

23. Such a take-out would be factually incorrect. The SAcsi report does not support the claim that Vodacom is ‘SA’s Best Network for 3 years in a row’. The concession by Vodacom in the Directorate’s rulings cited above, that it cannot currently claim that it is SA’s ‘fastest’ network, undermines such a conclusion. 

24. Even if the SAcsi report may be accepted as substantiation for the claim that Vodacom is ‘SA’s Best Network’ support for the remainder of the claim ‘for 3 years in a row’ does not derive from the SAcsi report as SAcsi has not ranked Vodacom as the Best Network for three years in a row.

25. Except for the reference to the SAcsi report in the disclaimer, there is nothing in the body copy to draw the consumer’s attention to the changed circumstance and context of the claim. In fact, the body copy only serves to reinforce the misperception. The body copy claims that Vodacom is proud to ‘announce that SAcsi has ranked us as the Best Network for 3 years in a row’. This statement is patently false. SAcsi, based on an analysis of three-year data, ranked Vodacom in 2017 as the best network. It did not rank it best in 2015, 2016 and 2017, which is what the claim implies... 

27.      The claim is therefore misleading. Vodacom capitalized on the accolade it once enjoyed as the best network in the context of network performance, an accolade utilized extensively in the past and imprinted in the mind of, and accepted by, the consumer in that context, in order to perpetuate this belief, in circumstances where the claim is made in a different context. This is misleading within the contemplation of clause 4.2.1 of Section II of the Code…

29. The claim omits to point out that the accolade as Best Network by SAcsi is based on the assessment of other factors than network performance. This could have been achieved by the use of the full name of SAcsi and not the abbreviated format, as the name of the entity ‘South African Customer Satisfaction Index’ clearly identifies the basis of and survey for the ranking. This failure creates an ambiguity that will lead to the consumer being led. [sic]

The Respondent was directed to withdraw the claim in question from all advertising material with immediate effect on receipt of the Tribunal’s Ruling.

SUBSEQUENT TO THE AIT RULING

The Complainant took issue with Vodacom’s continued reliance on the prominent claim "SA’s Best Network” despite the above-mentioned rulings. The following examples were submitted for the Directorate’s consideration:
  • In-store advertising and window decals;
  • Several examples from the respondent’s consumer-oriented and business-oriented websites;
  • YouTube commercials that should long since have been removed;
  • An advertisement posted on Vodacom’s Twitter timeline on 17 June 2018 (available at https://twitter.com/Vodacom/status/1008277857288810497). The same advertisement was also posted on Vodacom’s Facebook page on the same day;
  • A new YouTube commercial published on 1 July 2018.

The Complainant argued that the in-store material examples were obtained from different Vodacom stores across South Africa as recently as the last week in July 2018. The claim was generally displayed on shop windows, on security scanners at the entrance, on table wraps and window-front displays promoting a specific device. Where the asterisked disclaimer is present, it remains the non-descript "SAcsi” disclaimer ruled against, and is positioned separate to the claim in minute or virtually illegible font. 

The Complainant submitted that the claim "SA’s Best Network” still appears on a number of current and old Vodacom website pages. It argued that while several of these pages are old, they remain available online. The Complainant relied on the Directorate’s ruling in Telkom Mobile Unlimited / C Faulkner / 2016-3203F (18 July 2017), which held that a dormant webpage that was still accessible was in breach of Clause 15 of the Procedural Guide.

The Complainant invited the Directorate to access Google and type: "sa’s best network” site:vodacom.co.za (including the quotation marks), and click on search. This, it submitted, retrieves any live Vodacom web-pages where the words "SA’s Best Network” appear. At the end of June, this search retrieved 29 such examples. Similarly, searching "best network” site:vodacom.co,za delivers more than 100 hits where Vodacom still claims to have the best network in the country. In keeping with the ASA’s ruling in Telkom Mobile Unlimited / C Faulkner / 2016-3203F (18 July 2017), the Complainant submitted that the onus was on Vodacom to ensure that this claim is removed from any and all of its web-pages. This has not occurred, rendering Vodacom in breach of the relevant ASA rulings.

The Complainant argued that the majority of these pages (given their relative age) still communicate the claim in a network performance context despite Vodacom’s earlier undertaking to refrain from doing so. The same criticism was levelled at Vodacom’s business-oriented website www.vodacombusiness.co.za. Here, too, the Directorate was invited to search "sa’s best network” site:vodacombusiness.co.za (including the quotation marks) and "best network” site:vodacombusiness.co.za to see the extent to which Vodacom has simply ignored its own undertakings and existing ASA rulings. 

The Directorate was further invited to access the Respondent’s Youtube page, specifically the one dedicated to its television commercials. The Complainant argued that for the most part, all of the commercials loaded on this page either still communicate the "Best Network” claim in a network performance context, or with deliberately short (virtually unnoticeable) reference to "As rated by SAcsi 2017”.

Furthermore, on 17 June 2018, the Respondent posted a twitter advertisement encouraging South African fathers to "Be a Super Dad on SA’s Best Network*”. The post, however, contained no additional information and no explanation as to what the asterisk is intended to reference, and the bland "T&Cs apply” disclaimer was both meaningless and virtually invisible. The exact same advertisement was posted on Vodacom’s Facebook account.

On 1 July 2018, Vodacom also posted a brand new commercial on YouTube. The posting is titled "Vodacom: #BeSuper on SA’s Best Network”, and the supporting write-up reads: "A super smart way to stay super connected. Now you can be a Super hustler, share Super thoughts and pics on your socials and live your Super life on SA’s Best Network*”. The disclaimer, which is barely visible, reads "As voted by you in the SA Customer Satisfaction Index”. 

The Complainant submitted that it is particularly concerning to note that Vodacom have now conceded to no longer having "SA’s Best Network” from a network performance perspective (Vodacom / SA’s Best Network / MTN / 2018-7227F (30 January 2018)), and have been expressly told not to make the claim "SA’s Best Network” from a customer-opinion perspective (Vodacom / "SA’s Best Network For 3 Years” / MTN / 2018-7263F (7 June 2018)). Despite this, Vodacom persists with the claim "SA’s Best Network”. This latest execution blurs the lines between customer opinion and network performance, by creating one context in the imagery, and another in the disclaimer. The fact that both these contexts are patently false (as per the ASA rulings referred to) exacerbates the deliberate deception.

The Complainant argued that, in the event of an adverse ruling, additional sanctions beyond the immediate withdrawal of the claim would be warranted. 

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the breach allegation, the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) was considered relevant.

RESPONSE

Ogilvy & Mather Johannesburg, on behalf of Vodacom, submitted, inter alia, that the AIT ruling considered and ruled on a print advertisement with the headline "SA’s Best Network* for 3 years in a row” and the disclaimer "*As rated by SAcsi 2017” (the "Three-Year Claim”). It accepted that it was required to adhere to the order made in the AIT ruling until such time as it is reversed on appeal.  It is, however, evident from the breach complaint that it is not currently using the Three-Year Claim in any advertising.  This should bring an end to the ASA Directorate’s consideration of the breach complaint, as the breach complaint itself accepts that the Three-Year Claim considered in the AIT ruling is not currently in use. 

The breach complaint is rather that the Respondent continues to use the claim "SA’s Best Network” (the "Best Claim”), and that the use of the Best Claim is in breach of the AIT ruling.  The Best Claim per se was, however, not the consideration before the AIT.  The Respondent’s reasonable interpretation of the AIT ruling is that it was directed to discontinue the use of the Three-Year Claim and not the Best Claim. Accordingly, based on a reasonable interpretation of the AIT ruling, the Best Claim with the disclaimer "South African Customer Satisfaction Index” (given that Vodacom is required to adhere to the order made in the AIT ruling until such time as it is reversed on appeal), is not in breach of the AIT ruling. 

The Respondent argued that, insofar as the ASA Directorate is required to interpret the AIT ruling, it is submitted that the ASA Directorate should suspend its consideration of the breach complaint pending the FAC’s consideration of Vodacom’s notice of appeal against the AIT ruling, alternatively, to accept Vodacom’s interpretation of the AIT ruling for purposes of considering the breach complaint. A failure to do so will effectively make the FAC ruling in this matter a hollow result. 

The Respondent submitted that a Best Claim ought to be considered in the context of the particular advertisement as a whole, in compliance with Clause 3.2 of Section I.  It is evident from this clause that the starting point in the evaluation of an advertisement should be the advertisement itself, and all due elements of such advertisement. A Best Claim cannot simply be interpreted to be claims related to speed and/or network performance. The AIT ruling accepted that the Best Claim with the disclaimer "South African Customer Satisfaction Index” may be used where the context does not reference, for example, speed; coverage; uploading and streaming of videos online; voice calls; dropped calls; etc., and there was no reasonable basis on which to inform the hypothetical reasonable consumer that the Best Claim, in the context of a particular advertisement as a whole, related to network performance. 

The pertinent question before the ASA Directorate is therefore whether the Best Claim is used on a network performance context in any of the advertising referenced in the breach complaint, as the use of the Best Claim in a non-network performance context follows the AIT ruling.

The Respondent pointed out that for the period April to June 2018, Vodacom is significantly superior to other service providers as "SA’s Fastest 4G Network” based on Ookla Q2-2018 data, and as "SA’s Fastest Network” based on ATIO Q2-2018 data.  The Respondent submitted confidential confirmatory letters from both Ookla and ATIO in support of this. 

The Respondent argued that the in-store material referenced by the Complainant all carry the Best Claim, and not the Three-Year Claim ruled against by the AIT.  Moreover, it submitted that the in-store materials are not making a network performance claim, but that in all instances, the Best Claim is used in a context which is fully supported by the SAcsi 2017 substantiation. However, insofar as the disclaimer "*SAcsi 2017” still appears on some material, as opposed to the disclaimer "*South African Consumer Satisfaction Index 2017”, it is evident from the examples submitted by the Complainant that the use of this disclaimer is not wide-spread, and these instances will be immediately remedied.  The Three-Year Claim was never used on in-store material.

With respect to the Complainant’s reliance on the "… vast number of instances where the claim still appears on current, and in some instances old Vodacom website pages…”,  the Respondent submitted that the Complainant simply relies on the Google search for the "best network” site:vodacom.co.za; "sa’s best network” site:vodacom.co.za; and "sa’s best network” site:vodacombusiness.co.za. It argued that the Complainant’s breach complaint is only specific in respect of the vodacombusiness.co.za landing page, and that it would be inequitable to investigate and rule on any of the other Internet advertising links as objected to by the Complainant in the breach complaint. 

The landing page www.vodacombusiness.co.za contains a heading "Did you know?” with the three claims, "Not only do we have the best mobile network, we also have a wide range of ultrafast broadband products”; "We have a range of high-value, worry-free products to suit everyone”; and "Avoid calling Customer Care or standing in queues - get help and support online!”. The claim that Vodacom has the "best mobile network” is not linked to network performance, but is a wide, general claim supported in terms of SAcsi 2017.  The Three-Year Claim is not made in the advertising in question, and the Best Claim cannot reasonably be interpreted as a network performance claim.

With respect to the YouTube advertising, the Complainant is again casting a wide net over Vodacom’s YouTube advertising without interrogating the individual advertisements.  It cannot be reasonably required of Vodacom to interrogate these advertisements individually and essentially create the breach complaint against itself.  Rather, it is expected of the Complainant to deal with each of the alleged YouTube advertisements individually and for the Respondent to be afforded the opportunity to address the objections individually.  It would be improper to expect the Respondent to answer to a complaint when the complaint does not provide sufficient motivation to render it more than merely a suggestion or bald allegation (Nature’s Choice Products / McCain Foods / 16283 (12 November 2010).  The ASA cannot investigate a complaint that does not clearly set out a basis for the objection, as this is prejudicing Vodacom and the ASA must abide by the principle of audi alteram partem (Promato / HPA / 9668 (2 June 2008).  

The Father’s Day advertisement in question states, "Be a Super Dad on SA’s Best Network*”.  This claim is not a network performance claim and is borne out by the SAcsi 2017 data.  Insofar as the disclaimer "*SAcsi 2017” appeared in the advertisement, as opposed to the disclaimer "*South African Consumer Satisfaction Index 2017”, the Respondent apologised for this inadvertent error.  It is, however, evident from the fact that the Complainant highlighted a single instance that the use of the "old” disclaimer is not wide-spread.  In fact, all new Twitter and Facebook posts carry the disclaimer, "*As rated by you in the South African Consumer Satisfaction Index 2017”.

ASA DIRECTORATE RULING

The ASA Directorate considered the relevant documentation submitted by the respective parties.

The Directorate is tasked with determining whether the respondent is in breach of the previous ASA Directorate ruling.

Clause 15.1 of the Procedural Guide states that the "responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”.

Clause 15.5 of the Procedural Guide provides that:
"Offending advertising is to be withdrawn from every medium in which it appears, notwithstanding that the complaint did not specifically refer to that particular medium”.

It is trite that the duty to ensure immediate action to comply with an adverse ruling lies with the Respondent and that the ruling is binding until overturned on Appeal.

PRELIMINARY ISSUES.

Suspension of the breach decision pending appeal

The Respondent has submitted that the Breach investigation should be suspended pending appeal.

While there is certainly some argument as to why this would be an expeditious step, the Directorate is not convinced. The Code allows for the Respondent to make application to the Chairperson of the Final Appeal Committee for suspension of the AIT ruling pending appeal. The Respondent has not done so. For the Directorate to postpone the matter pending the Appeal would be a de facto suspension of the ruling. Given that the Directorate does not have the powers to suspend a decision of a higher committee and given that the Respondent has deliberately elected not to take this step, the Directorate feels that it has no choice but to pursue the breach investigation at this time.

Material

The Complainant has placed a large amount of allegations before the Directorate, giving the Directorate instructions to follow certain search routes in order to access certain material.

It is trite that the Directorate needs to consider, in a matter such as this, each piece of advertising in context. The Directorate cannot make a blanket ruling. It is also true that archived material that is still accessible to consumers can fall within the reach of a breach allegation.

However, the Directorate notes:
  • It is not prepared to do the Complainant’s homework for it and research the use of claims itself. Material must be put before the Directorate and argument made on that specific material;
  • The Respondent cannot be expected to respond to a blanket case that does not highlight specific breach allegations, especially given the very complicated history of this matter;
  • It is not convinced that following the very specific search paradigms set out by the Complainant will result in finding material that a consumer would chance upon.

The Directorate will therefore, at this time, consider only:
  • The material actually placed before it; and
  • The new You Tube commercial.

The Complainant is free to lodge further breach allegations should it believe this to be necessary.

Rulings

The Complainant has submitted a breach complaint in relation to two rulings, both involving the claim "SA’s Best Network”:

The January Ruling

The January Ruling relates to a claim made in terms of network performance and speed. 

At the time of that complaint, the claim was no longer supported by the substantiation, as was accepted by both parties.

The ruling stated: "The undertaking is accepted on condition that the claim in its current format is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future without appropriate substantiation being available (our emphasis).

The evidence submitted to the Directorate at this time appears to show that there is prima facie evidence that the claim is now supported. This evidence takes the form of Ookla data for Q2 2018, showing fastest speeds on 4G devices, and ATIO data, showing fastest speeds on all devices for Q2 2018. This is sufficient to counter the breach allegation, as the issue of whether the substantiation is sufficient cannot be interrogated exhaustively without reference to Clause 4.1 of Section II, which has not been cited in this matter.

The Complainant is therefore advised that if it believes that the evidence tendered in this matter is insufficient, it must lodge a new complaint against the claims. In the event that the substantiation is found to be insufficient, the January Ruling will be considered in that context.

Given this, the Directorate finds that claims of "Best Network” in the context of speed and performance, or absent any clarifying context, are prima facie not in breach of the January Ruling.

The AIT Ruling

The Advertising Industry Tribunal found, inter alia, that:

Even if the SAcsi report may be accepted as substantiation for the claim that Vodacom is "SA’s Best Network” support for the remainder of the claim "for 3 years in a row” does not derive from the SAcsi report as SAcsi has not ranked Vodacom as the Best Network for three years in a row. Except for the reference to the SAcsi report in the disclaimer, there is nothing in the body copy to draw the consumer’s attention to the changed circumstance and context of the claim. In fact, the body copy only serves to reinforce the misperception.
The Directorate’s reading of the AIT ruling is that the AIT was not satisfied with the claim because it:
  • Implied the accolade had been awarded for three years in a row, which it found not to be the case (ref par 24 of the AIT Ruling);
  • Did not clarify that "SAcsi” is not a network performance measure and relates to customer satisfaction (ref par 29 of the AIT Ruling).

It is an inevitable consequence of using the same claim in different contexts that it will present difficulties in determining which ASA Ruling applies to which situation. The Directorate will now apply its mind to which ruling – the January Ruling or the AIT Ruling – if either, apply to each incidence of breach raised by the Complainant, and rule accordingly.

IN-STORE MATERIALS

The Directorate is presented with something of a dilemma in this matter. The Complainant has quite clearly lodged this aspect of the complaint in terms of the January Ruling, as the SAcsi disclaimer is either absent or illegible. The Complainant repeatedly refers to the January Ruling as relevant and the January deadlines as being those in play. The Respondent has defended the claim by saying that each use is clearly a reference to consumer experience, triggering reference to the AIT Ruling.

The Directorate therefore turns to the actual content of the advertising and finds that:
  • It is true that in all the examples before us the disclaimer is either absent or illegible;
  • Some of the claims in fact appear in the context of speed (e.g. "super-fast internet speeds”);
  • The AIT Ruling recognised, at paragraphs 25 and 27, that in the absence of clarity, the "Best Network” claim will be understood by consumers to reference the speed and performance claims made and substantiated in the past.
Given this, the Directorate is of the opinion that these are speed and performance claims. The Directorate therefore regards this material as falling under the January Rulings.

As stated above, the Directorate finds that claims of "Best Network” in the context of speed and performance, or absent any clarifying context, are prima facie not in breach of the January Ruling.

THE NEW YOUTUBE COMMERCIAL

This commercial shows a man successfully following his girlfriend, who is riding a runaway horse, to a remote location. The "Best Network” claim is made in this context, with the disclaimer, "As voted by you in the SA Customer Satisfaction Index”.

In terms of breach, the commercial therefore relates to the AIT ruling. It does not contain the reference to three years, and spells out the SAcsi research in full. It is therefore not, at first glance, in breach of the AIT Ruling.

However, the Directorate agrees with the Complainant that the disclaimer is illegible and not shown at all pertinent times. The claim in the context of the advertisement is, in the prima facie opinion of the Directorate, a claim made in the context of network coverage. This is not an issue canvassed by either the January Ruling or the AIT Ruling. The Complainant is therefore invited to lodge a new complaint in this regard, should it so wish.

There is, however, not a breach of the AIT Ruling (as the three year reference has been removed and the reference to SAcsi is spelt out), nor the January Rulings (as this is not a speed/performance claim).

TWITTER AND FACEBOOK POSTING

The Complainant argued that the Respondent posted a twitter advertisement encouraging South African fathers to "Be a Super Dad on SA’s Best Network*”. The post, however, contained no additional information and no explanation as to what the asterisk is intended to reference, and the bland "T&Cs apply” disclaimer is both meaningless and virtually invisible. 

The Respondent submitted that the claim is not a network performance claim and is borne out by the SAcsi 2017 data.  Insofar as the disclaimer "*SAcsi 2017” appeared in the advertisement, as opposed to the disclaimer "*South African Consumer Satisfaction Index 2017”, it apologised for this inadvertent error.  

The Directorate notes that it cannot find the "*SAcsi 2017” disclaimer on the advertisement placed before it, and finds it unlikely that the consumer would have reference to that disclaimer. In the circumstances, the claim appears only in the context of the advertisement – which states: "Stream your kiddies’ favourite videos in HD with even wider 4G coverage.” 

The claim is therefore arguably either a performance claim ("stream”), which falls under the arguments above relating to the January Ruling, or a network coverage ("wider 4G coverage”) claim – neither of which results in a breach finding. It is therefore not necessary for the Directorate to reach a decision as to the exact takeout of the material at this time. Suffice it to say that there is no breach.

The breach complaint is dismissed.


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