By Nick Ball
Promoting your product or service through advertising is an important part of any business, whether that be done via traditional methods, such as newspapers, magazines or on the radio or via relatively modern methods, such as by using social media channels like Facebook, Instagram or Twitter. Whichever way you choose to do it for your business, it is important to get it right for so many reasons, not least legal ones.
But, when it comes to advertising your product or service, just how well informed must the average consumer be in order for your advert to comply with the law and not be misleading?
Well, this very question has recently come before the courts in the case of R (CityFibre Ltd) v Advertising Standards Authority , and the judgment provides an interesting answer for those who provide a product or service to consumers.
CityFibre, a provider of full fibre broadband, had previously won the right to seek judicial review of a decision by the Advertising Standards Authority (ASA), which concluded that the use of the term “fibre” in broadband advertisement for part-fibre services was not misleading to consumers i.e. providers of part-fibre broadband were not required to differentiate their products from full fibre services when advertising them.
CityFibre’s primary claim was that the ASA had erred in law because, in reaching its decision, it applied the wrong test for determining the meaning of the “average consumer” under the Consumer Protection from Unfair Trading Regulations 2008. While it was accepted that the average consumer is assumed to be reasonably well-informed, the parties disagreed about the degree of knowledge required.
CityFibre argued that the average consumer must be reasonably well-informed about the “features” of the relevant product or service in the advert (in this case, having a higher level of understanding to be able to distinguish between full-fibre and part-fibre broadband).
However, whilst the High Court judge did accept that full-fibre broadband was technologically superior to part-fibre broadband, he rejected CityFibre’s argument that the average consumer must be reasonably well-informed about the “features” of the relevant product or service and upheld the ASA’s decision.
The judgment, which was delivered on 15 April 2019, confirmed that it was not sensible for the average consumer to have a level of understanding about every feature or characteristic of the product or service in the advert. It would also be difficult to define what constituted a relevant “feature”.
When advertising your product or service, the average consumer therefore only needs to be reasonably well-informed about the product or service more generally and not about every feature or characteristic of it.
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