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Medium: Online, Television
ASAI Code 7th Edition: 2.4(c), 4.1, 4.4, 4.9, 4.10, 4.32, 4.33
Television advertising for eir included various scenes featuring people using the eir mobile network and singing the song: "Anything you can do, I can do better." The scenes were:
A young girl is shown using her mobile phone to record herself playing her guitar and singing the song.
A man is shown in a workshop, singing “Anything you can do, I can ..”, he uses his mobile phone to activate a robot head (which sings “better than you”)
A person is shown cycling along a cliff top with a mobile phone attached to the handlebars, a young boy playing a computer game, a woman running with earphones in and a mobile in a sports armband and a man taking a photograph with his mobile of another man painting a mural stating “Better than you”, whilst upside down.
The next series of scenes features people singing ‘No, you can’t’ and other in response ‘Yes, I can’, in all of which a mobile phone features. These included a man in a boat (No, you can’t), a Special Olympics medal winner (Yes, I can), an Irish dancer in first place spot on a podium (No, you can’t), an entertainer (Yes, I can), a woman looking at images on her mobile (No, you can’t) and finally a woman using her mobile to control a drone (Yes, I can).
This was followed by the voiceover which stated:
“As Ireland's largest communications company, we deliver powerful mobile coverage to every town, city and county in Ireland and with our 30 day walk away network satisfaction guarantee, you can do anything anywhere with eir mobile. Eir, let's make possible."
Footnote on screen: "largest company based on revenue. 99% 3G and 95% 4G population coverage in Ireland. User experience may vary. Network guarantee on bill pay plans. For full details and terms see eir.ie."
The Campaign Terms from the eir website included the following:
“Ireland’s largest communications network
eir is Ireland’s largest telecommunications company in terms of both revenue earned and headcount of staff based on the most recently available published data from each of the six largest retail telecommunications operators in the Republic of Ireland as determined by Commission for Communications Regulation’s (ComReg) most recent market results [ComReg 17/15(R)], posted 16th March 2017 for the period ending 31st December 2017, from a calculation of combined fixed and mobile retail revenue share from Summary “Irish Quarterly Communications Market Share Data Q4 2016”. The most recently available comparable data is sourced from both audited accounts published by the Companies Registration Office and unaudited periodical performance results as published directly to the public by the individual companies through their investor relations functions. The most recent available data has been used in all instances.”
Three Ireland (Hutchison) Limited objected to the advertisements on the following grounds:
1) That eir were using a claim in their television advertisement, “Ireland’s largest communications company”, in the context of a “mobile network satisfaction 30 day guarantee” claim. Three noted that the claim online in the Campaign Terms was “….largest communications network” and was based on revenue earned and headcount across eir’s fixed and mobile business derived from public statements relating to a number of Irish telecommunications companies and ComReg’s Q4 2016 Quarterly Key Data Report for the Irish telecommunication market.
They said that the claim was misleading in the context of offering a “mobile network satisfaction 30 day guarantee” as it gave consumers the impression that, by entering into a contract with eir for mobile services, they were engaging with Ireland’s largest mobile network which was not true as both Three and Vodafone had larger market share than eir, referring to ComReg’s Quarterly Key Data Report for Q1 2017 which they said was actually the most recent data available at the time.
Three stated that eir had relied on market share percentages for fixed retail revenue and mobile revenue and they considered that it was unclear how eir had extrapolated the percentage figures to reach the conclusion that they were Ireland’s largest communications company. They said that the claim did not refer to technology, network or coverage or anything that could substantiate the associated network quality claim which was inherent in their mobile network satisfaction 30 day guarantee, for example, no reference had been made to 3G or 4G coverage or the number of their network sites.
2) Three also considered that the song within the advertising was a comparative claim that was being presented alongside the claim to be “Ireland’s largest communications company” and their “Mobile network satisfaction 30 day guarantee”, giving consumers the impression that customers entering into a contract with eir for mobile services have the benefit of Ireland’s largest mobile network.
eir strongly disagreed with Three that they were giving a misleading impression that customers entering into a contract with them for mobile services had the benefit of Ireland’s largest mobile network. They said that the advertisements formed part of a wide ranging brand campaign by eir which emphasised the size of eir and the suite of services offered by them. They said that in this case, the adverts were a brand statement for the campaign.
1) Ireland’s largest communications company
eir said that the purpose of the campaign was not to state that they had the largest mobile network, instead it was to advertise their various services such as their mobile, broadband, eir Sport and WiFi calling services and also to call out to customers that they would be contracting for such services with eir who were Ireland’s largest communications company. They said that their TV advertisement advertised their mobile services and had clearly referred to “Ireland’s largest communications company” and had not stated “Ireland’s largest communications network”.
They said that the small print for their television advertisement, which was visible for most of the duration of the advert, substantiated their claim to be Ireland’s largest communications company by clearly stating “Source: Companies Registration Office, Largest company based on revenue…. For full details and terms see eir.ie”. They considered, therefore, that they had clearly called out what they had taken the information from and how it was derived in order to substantiate their claim.
In order for them to be clear and transparent as to how they made their claim to be Ireland’s largest communications company, their Campaign Terms had also directed customers to their website using the link “eir, let’s make possible….campaign terms” which was located on their website. They said that these terms clearly stated the basis for their claim to be Ireland’s largest communications company in both revenue earned and headcount of staff based on the most recently available published data from each of the six largest retail telecommunications operators in the Republic of Ireland as determined by Commission for Communications Regulation’s (ComReg) most recent market results [ComReg 17/15(R)], posted 16th March 2017 for the period ending 31st December 2016 from a calculation of combined fixed and mobile retail revenue share from Summary “Irish Quarterly Communications Market Data Q4 2016”.
They said that they had referred to the ComReg QKDR Q4 2016 rather than to the QKDR Q1 2017 in their terms as ComReg QKDR Q4 2016 was the most up to date information available at the time the campaign was devised. They said that the period covered by ComReg QKDR Q4 2016 would also be in line with all of the information published on competitors’ websites and they could not understand how Three were unable to derive their calculations from the report given that it was an industry standard report which was clear and transparent to all telecommunications companies. They considered that the reference by Three to mobile market share in the ComReg Q1 2017 report was irrelevant as eir had relied on revenue and headcount from the ComReg Q4 2016 report.
They also said that they had directed customers to the most recently available comparable data which was sourced from both audited accounts published by the Companies Registration Office and unaudited periodical performance results as published directly to the public by the individual companies through their investor relations functions. They said that they clearly provided a website link to each of the competitor websites so that customers could review the published information. They said that the ComReg data was used to identify the six largest operators for comparison and the CRO data and the published information from each of its competitors determined the revenue amounts which substantiate the claims made by them. They considered, therefore, that they had sourced information from three independent and reputable sources and could not see how they could be any more clear and transparent and did not give them an artificial advantage or cause confusion.
In regards to the omission of a reference to 3G, 4G or the number of network sites, they disagreed as their TV advertisement had clearly called out that eir delivered powerful mobile coverage to every town, city and county in Ireland. They said that the small print of the advert had referred to “99% 3G and 95% 4G population coverage in Ireland” and also stated that “user experience may vary”. Therefore, they had clearly called out coverage while the reference to the number of mobile network sites by Three was irrelevant as it was coverage which was an important indicator not the number of masts and sites which provided such coverage. They said that independent of this, they reiterated that there was no claim as to the size of the network, nor could limited infrastructure information on one minor part of the communications market, being that of mobile, be relevant to influence such an overall statement which was otherwise objectively justified. They again referred to the fact that they directed customers to the campaign terms to provide further information about the claim and also provided a coverage map for customers to review. In view of this they disagreed with Three’s complaint as they had clearly referred to coverage and had clearly called out that it provided services to every town, city and county in Ireland together with the percentage coverage available throughout Ireland. Notwithstanding same, it was also irrelevant to a claim of being Ireland’s largest communication company, justified and supported on the basis of revenues and was too limited to only consider mobile services as opposed to the breadth of communications services and markets delivered.
eir did, however, acknowledge that there were two typo errors in their Campaign Terms which referenced “Ireland’s largest communications network”. They said that these statements were made in error and were an oversight on behalf of eir as the reference should have stated “Ireland’s largest communications company”. They said that the errors had been rectified so that the message in the Campaign Terms was consistent with all other messaging for the campaign. They considered, however, that they were minor elements of a supporting document, not the main advertisement and public positioning that consumers would be influenced by. They considered that the complainants knew that all advertising and promotions used only the term “Ireland’s largest communications company”, particularly when the context of the overall campaign and each advertisement did not draw an inference or suggestion of network superiority.
In regards to their “30 Day Mobile Service Guarantee”, they said it was not clear from Three’s complaint what issue they had with the guarantee and could only speculate that they were trying to confuse the ASAI by seeking to link the guarantee to their claim to be “Ireland’s largest communications company”. They said that both statements were clearly separate and distinct and that the TV advert had clearly stated that they were offering a mobile network satisfaction 30 day guarantee to mobile bill pay customers which allowed such customers to terminate their mobile service without reason within 30 days of joining eir’s mobile service. In their Campaign Terms, they said that they had gone into further detail about the 30 day mobile service guarantee and were therefore at a loss as to how Three could construe that any reference to 30 day mobile service guarantee supported a claim by them that they had the largest mobile network in Ireland. They reiterated that the text in the voice over of the TV advert had stated “With Ireland’s largest communications company…”.
2) In regards to their use of the song “Anything you can do, I can do better”, they noted that Three considered they were making a comparative claim. They rejected this conclusion and inference. They said that there was clearly no allusion in the above the line advertising to “network” nor was there any claim or basis of this nature.
They said that the song did not form part of any advertising claim or allegation and must be considered in the manner of the presentation and the persons and basis upon which it was shown. They said that there was no mention or depiction of competitors in the images and description of the TV advert, therefore, it should not be considered a ‘competitive or comparative’ claim. They argued that the song was merely incidental background music, reflecting the activities of the persons featured in the TV advert. They said that even if it was perceived that it amounted to some advertising claim, it was clearly relating solely to the persons who were all using the power of eir’s mobile services in a different way to the preceding image – therefore, showing that what they did using eir was ‘better’ than the other person, nor in any way an allusion to competitors. They said that it if had been a competitor comparison, it would have to be a song saying “Anything they can do, we can do better” and this was not the case.
The Executive, on reviewing the response from eir, noted that the advertisement provided to them did not contain the reference to the Companies Registration Office as a source of information. In the circumstances they requested further information from eir in the matter.
In reply, eir advised that it was their understanding at the time of their response, that the wording “Source: Companies Registration Office” was included in all of the advertisements for the campaign. They have since been advised that the wording was used in all but one of the advertisements as Clearcast had requested that they include the reference in order to make the advertisements as transparent as possible. They said that the advertisement obtained by the Executive was their first advertisement in the campaign and did not contain the wording as it had not been requested of them at that time. Notwithstanding this, they said that they had directed customers to their website where all of the information and links to competitor sites were clearly and transparently provided by them.
The Executive also requested a copy of all advertising within the campaign in view of the fact that the advertisement objected to was one of a series.
Copies of various executions in the campaign were provided by eir which included advertising for eir mobile and broadband services.
2.4 (c) Compliance with the Code is assessed in the light of a marketing communication’s probable effect when taken as a whole and in context.
Particular attention is paid to:
• the characteristics of the likely audience
• the media by means of which the marketing communication is communicated
• the location and context of the marketing communication
• the nature of the advertised product and the nature, content and form of any associated material made available or action recommended to consumers.
4.1 A marketing communication should not mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.
4.4 Advertisers should not exploit the credulity, inexperience or lack of knowledge of consumers.
4.9 A marketing communication should not contain claims – whether direct or indirect, expressed or implied – which a consumer would be likely to regard as being objectively true unless the objective truth of the claims can be substantiated.
4.10 Before offering a marketing communication for publication, advertisers should satisfy themselves that they will be able to provide documentary evidence to substantiate all claims that consumers are likely to regard as objective. Relevant evidence should be sent without delay if requested by the ASAI and should be adequate to support both detailed claims and the overall impression created by the marketing communication.
4.32 Comparisons should be fair and should not give rise to a likelihood of a consumer being misled. In any marketing communication that uses comparisons, the basis of selection should be clear and the elements of comparison should not be unfairly selected in a way that gives the advertisers an artificial advantage.
4.33 A claim that any product is superior to others should only be made where there is clear evidence to support the claim. Wording which implies superior or superlative status – such as, “number one”, “leading”, “largest”, or similar – should be capable of substantiation with market share data or similar proof.
Complaint not upheld.
The Complaints Committee considered the detail of the complaint and the advertisers’ response.
The Committee noted that the reference to “Ireland’s largest communications network” in the Campaign Terms document was an error and had been corrected.
The Committee noted that the advertisement objected to, the first in the campaign, did not include the reference to the Companies Registration Office as a source for the claim to be “Ireland’s largest communications company”.
The Committee considered that the claim within the television advertisement “As Ireland’s largest communications company, we deliver powerful mobile coverage to every town, city and county in Ireland” and whether it would be linked by viewers to the statement “and with our 30 day walk away network satisfaction guarantee, you can do anything, anywhere with eir mobile”.
The Committee considered whether consumers would understand that a claim was being made in relation to the size of the advertisers’ mobile network. While they noted that the scenes within the advertisement had all related to mobile usage, and that the advertisers had made a claim in relation to their mobile coverage, the Committee did not consider that the advertisers had claimed to have the largest mobile network.
Complaint not upheld.
The Committee noted that the lyrics of the song “Anything you can do, I can do better” were about superlative claims but that they had been used about mobile phone users doing better and whilst they may have been doing better because of the network, they did not consider that the song implied that the advertisers’ network was the largest network.
Complaint not upheld.
No further action was required.