Print This Post
ASAI Code 7th Edition: 2.4(c), 4.1, 4.4, 4.9, 4.10, 5.5, 5.6, 5.15(a), 5.15(i)
Separate advertisements appeared for GoMo and eir.
1. Advertising for GoMo appeared in various media offering
“€9.99 A Month For Life
All Calls. All Texts. All Data”
2. Advertisements for eir included the following:
eir’s website stated the following:
“Price promise for life
Price promise also available on our fibre to the home bundles with speeds up to 1Gb
Most popular offer
Broadband & Landline up to 100mb
€49.99 a month forever!
Price Promise FOR LIFE!”
A TV advertisement had a price sticker on display:
“New Customer Price €49.99 A MONTH FOR LIFE”
With a MVO stating “ … with unlimited Broadband for just €49.99 a month for life. eir, Lets Make Possible”
Two complaints were received regarding the advertising.
Vodafone referred to advertising being run by eir and “GoMo, which they said were trading names of eircom Limited.
Vodafone considered the GoMo and eir Broadband ‘for life’ campaigns to be misleading. They considered the claim ‘for life’ to be an absolute claim and that the claim was contradicted by the GoMo and eir Broadband Terms and Conditions, where the advertisers could terminate or suspend the services and modify or amend these terms and conditions.
Issue No. 1 : GoMo Offer
They considered the ‘for life’ offer to be an absolute claim and not qualified in any respect. They said the claim that the offer was available ‘for life’, which, to the average consumer, suggested that the service itself would always be available at a price point of €9.99 for the duration of either the consumer’s lifetime, or the brand’s lifetime. They considered the ‘for life’ claim to be contradicted by the GoMo Terms and Conditions as follows:
Clause 12.1 stated, “We may terminate or suspend the SIM Only Service wholly or partially at any time at our option for any reason including…”
As this term stated that GoMo could terminate and suspend the service at any time for any reason, they considered this was a clear contradiction to the claim that the Offer was ‘for life’.
Clause 16 stated: “You should note that we may modify or amend these terms and conditions at any time, with or without notice to you by posting a copy of the modified or amended terms and conditions at www.gomo.ie/terms/. You agree to the modified or amended terms and conditions if you continue using the “MyGoMo” service following the date they are posted”.
Vodafone considered this term stated that GoMo could change the terms without individually telling customers by simply posting updated terms on their website, and that this was in contradiction to the claim that the Offer was ‘for life’.
They said that, in contradiction to that clause, Clause 2.6 stated, “We will notify you at least one (1) month in advance in accordance with clause 14 of any change coming into effect if we make any changes to your Agreement or to the SIM Only Service, or to the Charges for the SIM Only Service you are using, which (in our reasonable opinion) are likely to be of material detriment to you. If you do not accept such a change you may without charge cancel this Agreement by notifying us in accordance with clause 14 within one (1) month of us telling you about any change, to let us know that you want to cancel. You will be deemed to have accepted any implemented changes by continuing to use the SIM Only Service after the date of the change.”
They said the term stated that GoMo could change the Terms of the Offer at any point and that it was only if they felt the change was of material detriment to the consumer that they would inform consumers of the change. They said Clause 16 contradicted clause 2.6 where GoMo committed to informing customers about changes to the Terms. They considered that despite the contradictory nature of clause 2.6 and 16, both of these clauses allowed GoMo to modify and amend the terms (such as the service availability or price point) at any time and that this was in complete contradiction to the ‘for life’ claim made to consumers in absolute terms and without restriction, limitation, qualification or without explanation in any Campaign.
Issue No. 2 – eir offer
They considered the offer advertised as available ‘for life’ and ‘forever’ to be an absolute claim made by eir. They considered the advertising to consumers claimed the offer was available ‘for life’, which to the average consumer, suggested that the service itself would always be available at the agreed price point for the duration of either the consumer’s lifetime, or the brand’s lifetime. They considered the claims ‘For Life’/ ‘forever’ to be contradicted by the eir Terms and Conditions as follows:
a. Clause 9 stated, “eir reserves the right to change any aspect of this Promotion or to withdraw it at any time during the offer period if it deems it to be expedient”.
Vodafone considered the term stated that eir could terminate and suspend the service at any time for any reason, a contradiction to their claim that the offer was ‘for life / ‘forever’.
b. Clause 12 stated, “eir reserves the right to amend or vary these Promotion terms and conditions at any time without notice”.
Vodafone considered that this term stated eir could change the terms without individually telling customers by simply posting updated terms on their website and considered this was in contradiction to the claim that the offer was ‘for life’. Vodafone considered that, in contradiction, Clause 12 of the General Terms & Conditions stated, “Any changes to these General Terms and Conditions will be notified to You in accordance with the notice provisions at clause 12.1”. They considered Clause 12 of the General Terms & Conditions contradicted clause 12 of the ‘for life’ terms where eir committed to informing customers about changes to the Terms. They said that despite the contradictory nature of these clauses, clause 12 of the ‘for life’ terms appeared to allow eir to modify and amend the terms (such as the service availability or price point) at any time. Vodafone considered this was in contradiction to the ‘for life’ claim which was made to consumers in absolute terms and without restriction, limitation, qualification or without explanation in any Campaign.
They considered that the advertising was in breach of the ASAI Code.
The consumer complainant referred to advertising on the eir website and to two of the terms and conditions for the promotional offer, namely:
“(9) eir reserves the right to change any aspect of this Promotion or to withdraw it at any time during the offer period if it deems it to be expedient." and
"(12) eir reserves the right to amend or vary these Promotion terms and conditions at any time without notice."
The complainant considered that the product was significantly more expensive than competitor’s bundles that offered similar levels of service. As such, the primary draw of the ‘for life’ offer was surety that although it may be more expensive now, customers could rely on it being this guaranteed price for as long as Eir continued to offer broadband+phone services. The complainant said that behavioural economics shows that individuals were willing to pay more for products that offer such price surety, going forward. He considered that given these factors, the T&C's made the offer thoroughly misleading, as it offered no actual guarantees that prices would not increase, or that the product would not be withdrawn.
The advertisers said that in relation to the GoMo ‘for life’ offer, the advertised offer is ‘for life’, which related to a 30 day contract for unlimited calls, texts and 80 GB of data at a fixed price, which in November 2019 was €9.99 per month and €12.99 for those who joined GoMo from 15th January 2020.
The advertisers said the ‘for life’ offer implied that once a consumer had signed up at the fixed price point (and complied with their obligations ) they would continue to receive the service at that fixed price for as long as they remained a GoMo customer and considered this to be the only reasonable interpretation of the offer and associated terms and conditions. They said the ‘for life’ commitment by GoMo was a core element of the GoMo contract with customers and that the €9.99 a month ‘for life’ offer did not hide behind small print or inserted caveats into terms. They said GoMo had been very clear on all communications to customers who signed up to the €9.99 a month ‘for life’ offer on or before 15th January 2020 that they could avail of that offer for the remainder of their natural life and this had clearly been called out on the GoMo home page and on the GoMo.ie pricing section, which constituted a core element of customer contracts with GoMo. They said the GoMo pricing section clearly stated that customers who signed up to the €9.99 ‘for life’ offer on or before 15th January 2020 would have this offer for life.
Regarding the language in clause 2.6 of the GoMo terms, the advertisers said the clause took account of Regulation 14 of the European Communities (Electronic Communications Networks and Services) (Universal Service and Users Rights) Regulations (S.I. 337 of 2011) and the fact that while the core offering encompassed unlimited national landline/mobile calls and data for a monthly commitment of €9.99 (at launch), ‘For Life’ also offered the option of using non-core services on a pay as you use basis. They said that these non-core services were distinct from the core €9.99 a month offering in that they were subject to their own distinct prices and were subject to clause 2.6. They said that Directory enquiry services were an example of such non-core services and that they were obliged to provide access to these services which were offered by third parties who could and do impose wholesale price increases. They said such wholesale increases necessitated retail price increases to avoid the service becoming loss making and that in such circumstances, GoMo would have an obligation to notify such customers as per clause 2.6 of the GoMo terms.
Regarding the reference to clause 16, the advertisers said that it related to the MyGoMo app terms and conditions which were separate to the standard GoMo terms and had nothing to do with the pricing of the underlying €9.99 a month ‘for life’ offer, as they simply governed the customer’s use of the MyGoMo website.. They said Clause 2.6 of the GoMo terms had been inserted to protect customers in the event there was a negative change to the non-core GoMo terms. They said the €9.99 a month ‘for life’ offer was for the customer’s life for those customers who signed on or before 15th January 2020 and that the per month price offering was a fundamental constituent of the contract which the customer entered into with GoMo. The advertisers did not consider that there was a case for GoMo to answer.
In relation to the eir ‘for life’ Offer, the advertisers said that like the GoMo €9.99 a month ‘for life’ offer, the eir ‘for life’ offer was also for the customer’s life. They said the clauses referred to in the complaint were presented in the context of the promotional offer period and aimed at prospective customers i.e. the period when the offer was being advertised to customers. They said that on that basis they had included language whereby it could amend, change or withdraw the offer as advertised to customers during the offer / promotional period e.g. if the offer was very successful and hit its target level, eir would reserve the right to withdraw or change that offer for any new customers wishing to avail of the offer. They pointed out, however, that once a customer signed up to the eir ‘for life’ offer as advertised, the offer would have applied to that customer for life.
The advertisers said in addition to the above regarding the GoMo terms, where a customer signed up to an eir ‘for life’ offer, the prices for non-core services that were separate to those covered by the ‘for life’ offer core price, may be changed and eir reserved that right to make such changes e.g. in the case of third party services that had high wholesale costs that were subject to change, for instance directory enquiry services. They said that the core price of the eir ‘for life’ offer would not change for the duration of the customer’s life.
The advertisers said that any notices issued to a customer by eir would be via the channels agreed with that customer e.g. for broadband customers notices would normally be issued via email. They said that eir general terms apply to all residential customer contracts and where a customer signs up to an offer such as the eir ‘for life’ offer, the offer terms would be read in conjunction with the eir general terms. In the event of a conflict between the offer terms and the eir general terms, they said that the offer terms would always prevail in such circumstances.
Terms in Clause 12, GoMo Terms
12.1 We may terminate or suspend the SIM Only Service wholly or partially at any time at our option for any reason including:
12.1.1 if the Network requires modification or maintenance or for security reasons or if for technical reasons it is not possible to provide the SIM Only Service;
12.1.2 if you do not comply with, or in our reasonable opinion you are not complying with, the terms of this Agreement,
12.1.3 if you are using the SIM Only Service for commercial resale use;
12.1.4 if you are using the SIM Only Service, your SIM Card or your Number in any way which breaches any security or other safeguards or in any other way which harms or interferes with the Network, the service or the network or systems of any third parties;
12.1.5 where we reasonably believe that you are unable to comply with payment obligations or where you do not pay the Charges;
12.1.6 if, having made reasonable efforts, we cannot contact you;
12.1.7 where we are of the reasonable opinion that you have provided false or misleading information on your Application; or
12.1.8 if you breach any provision of clause 5 (Your Obligations).
12.2 You will remain liable for Charges during any period of suspension. In the event we reconnect you to the SIM Only Service after any period of suspension it may take us a number of Business Days to restore the SIM Only Service to you.
12.3 We may terminate this Agreement immediately:
12.3.1 if you do not rectify the reason underlying the suspension of SIM Only Service pursuant to clause 12.1 within thirty (30) days of suspension;
12.3.2 if you fail to pass such credit checks or exceed any credit limit specified by us ;
12.3.3 if you fail to pay any sums due under this Agreement by the due date;
12.3.4 if you breach any of the terms of this Agreement or if any information supplied by you to us is false or misleading;
12.3.5 if we believe, on reasonable grounds, that you are unable to pay the Charges;
12.3.6 if we receive a valid request to Move your Number from us to another Service Provider. You will remain liable for all Charges and other costs due up to the date of termination, including any applicable termination Charges, plus any additional interest which accrues;
12.3.7 if you are adjudicated as bankrupt, become insolvent or make any composition or arrangement with or assignment for the benefit of creditors; or
12.3.8 if any meeting of the Customer’s creditors is called pursuant to section 587, of the Companies Act 2014 or if you enter into liquidation, receivership or examinership or any steps are taken to appoint a liquidator, receiver or examiner to you.
12.4 Upon termination of the Agreement we shall disconnect your handset from the Network, you will forfeit and lose any existing call credit applying on your account and we will be entitled to ascribe your existing number to another customer or your original/new Network Operator Exercise of our entitlements shall not prejudice or affect the exercise of any other right or remedy which may be available to us.
Complaints Not Upheld.
The Complaints Committee considered the detail of the complaints and the advertisers’ response.
The Complaints Committee noted the advertisements appeared to be primarily predicated upon the concept of a commitment to a fixed price.
GoMo ‘For Life’ Offer
In relation to the GoMo advertising, the Committee noted that the core elements of the ‘for life’ offer were available for everyone who signed up for the offer, for as long as they remained customers on the relevant plan.
The Complaints Committee noted that Clause 12.1, which set out the circumstances in which the service may be terminated or suspended, included reference to the types of customer behaviour which was not acceptable under the Agreement. The Committee did not consider that the reservation of the right to suspend/terminate an account, where a customer did not fulfil their contractual obligations, invalidated the marketing claim.
In relation to Clause 2.6 which sets out the manner in which any changes to the Agreement or to the SIM Only service would be communicated to consumers, the Committee noted the advertisers’ explanation in relation to core and non-core services. As such they did not consider that the provision of notice re potential changes to non-core services invalidated the marketing claim.
In relation to clause 16, the Committee noted that this clause related to the MyGoMo app and the conditions of use associated with it. They did not consider that the right to amend access to the app changed the product offering at a particular price point.
Eir ‘For Life’ Offer
In relation to the eir advertising, the Committee noted the advertisers’ comments that the two clauses referenced in the complaints related to the fact that the offer, to new customers, may be withdrawn or amended. They did not consider that the fact that a promotional offer would not be offered, or offered on amended terms, to new customers invalidated a claim that the existing customers could continue to avail of the offer that they signed up to.
In the circumstances the Committee considered there was no breach of the Code involved on the basis suggested in the complaints.
No further action required.