R (oao CityFibre Limited) v Advertising Standards Authority

The Administrative Court has upheld the decision of the ASA, which concluded that the use of the term “fibre” in broadband advertisements for part-fibre services was not misleading to consumers. Mr Justice Murray set out guidance concerning the concept of the “average consumer”, which applies to fields beyond misleading advertising claims, as well as to the exercise of regulatory judgement by the ASA.

The Claimant, CityFibre, is the largest alternative builder and operator of wholesale full-fibre infrastructure in the UK market. By its claim, CityFibre alleged that the “average consumer” was likely to be misled by the unqualified use of the word “fibre” in advertisements for broadband services which were not “full-fibre”, i.e. by which data is transmitted via an optical fibre cable running from the local exchange to the end-user’s premises.

Following a recent review, including after having commissioned qualitative evidence to assess the understanding of average consumers of the term “fibre” in broadband ads, the ASA had concluded that the term’s use was not misleading.

Mr Justice Murray proceeded on the basis that for all intents and purposes, full-fibre infrastructure of the sort provided by CityFibre is technically superior to part-fibre technology.  However he dismissed the claim, finding that:

1. The “average consumer” did not need to be reasonably well-informed about the “features” of the product or service being advertised, if that meant possessing “a higher level of information than is entailed by simply being reasonably well-informed about the product or service” (at [101]-[106]);
   
2. Although he or she was “a hypothetical person or legal construct […]”, the concept was “necessarily linked factually to a particular population of actual persons, namely, consumers at whom the relevant advertising is targeted” (at [107]). As such, in appropriate circumstances, a decision-maker could have regard to a survey of consumer views or an expert’s report and the ASA had appropriately done so in this case (at [107], [110] and [113]); and
   
3. The ASA had not acted irrationally, including in relation to its commissioning of and having regard to the findings of the qualitative report it had commissioned (at [127]-[136]).
   

The full judgment can be read here.

Dinah Rose QC and Tristan Jones appeared for the Claimant, CityFibre.

Catherine Callaghan QC and Ravi Mehta acted for the successful Defendants, the ASA.