R Cityfibre Ltd v The Advertising Standards Authority Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 15 April 2019 |
| Neutral Citation | [2019] EWHC 950 (Admin) |
| Date | 15 April 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/913/2018 |
[2019] EWHC 950 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Murray
Case No: CO/913/2018
and
Ms Dinah Rose QC and Mr Tristan Jones (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Claimant
Ms Catherine Callaghan QC and Mr Ravi Mehta (instructed by Bates Wells & Braithwaite London LLP) for the Defendants
The Intervener was not represented.
Hearing dates: 13 and 14 December 2018
Approved Judgment
The claimant challenges by way of judicial review the decision of the defendants set out in a letter to the claimant dated 21 November 2017 (“the Decision”) that advertisements referring to part-fibre broadband services as “fibre” broadband services are unlikely to mislead consumers.
To understand this claim it is necessary to distinguish between the following types of technology, which are the four main technologies used to deliver broadband services to consumers and other end-users:
i) ADSL: This involves data being transmitted via a copper cable running between the local exchange and the premises of the end-user. ADSL stands for “asymmetric digital subscriber line”.
ii) Fibre to the cabinet (“FTTC”): This involves data being transmitted via an optical fibre (fibre-optic) cable running from the local exchange to a street cabinet near the end-user's premises and then via a copper cable connecting the street cabinet to the premises.
iii) Cable: This involves data being transmitted via an optical fibre cable running from the local exchange to a street cabinet near the end-user's premises and then via a copper coaxial cable connecting the street cabinet to the premises.
iv) Fibre to the premises (“FTTP”): This involves data being transmitted via an optical fibre cable running from the local exchange to the end-user's premises. This could be directly into an end-user's home or, in the case of a building encompassing multiple dwellings or other premises, such as a block of flats or an office block, to a box in the building, and from there to each subscriber's premises via an Ethernet cable.
Data travels in either direction along these connections, depending on whether it is being downloaded (received) or uploaded (transmitted) by the end-user.
ADSL uses the traditional copper wire telephone network and was the technology via which most consumer broadband users in the UK received broadband services at the time of the Decision (as may still be the case). It is also the slowest technology. The highest average speed available via ADSL in November 2017 was 11 megabits per second (“Mbps”), with the leading providers averaging 10 Mbps. These are download speeds. Upload speeds via ADSL are much lower.
Both FTTC and cable are part-fibre technologies, so references to “part-fibre” in this judgment refer to either, although they are different technologies, cable offering significant speed advantages over FTTC. As in the case of ADSL, upload speeds via part-fibre connections are considerably slower than download speeds. However, data speeds are considerably better, in general, than via ADSL.
FTTP is also referred to as “full-fibre” or “pure-fibre”. Upload speeds and download speeds are the same across a full-fibre connection. In addition, FTTP, in general, provides faster speeds than part-fibre connections and has a number of other advantages over part-fibre, as I will discuss in more detail in a moment.
It is a central contention of the claimant that full-fibre is objectively superior to part-fibre technology, and therefore a provider of part-fibre services should not be able to advertise its broadband service using the word “fibre” without making it clear in the advertisement that it provides that broadband service via part-fibre technology. If it fails to do so, the advertisement is materially misleading.
The issues in this case are whether the defendants made an error of law and/or acted irrationally in reaching the view, reflected in the Decision, that the average consumer is unlikely to be misled by the unqualified use of the word “fibre” in advertisements for part-fibre broadband services targeted at consumers.
The claimant and the intervener
The claimant, CityFibre Limited (“CityFibre”), is the largest alternative builder and operator of wholesale full-fibre infrastructure in the UK market. A significant part of its business is the provision of full-fibre infrastructure for delivery of broadband services to consumers in the UK. Being a wholesale provider, it does not deal directly with consumers or with retail business users.
The intervener, Hyperoptic Ltd (“Hyperoptic”), obtained permission to intervene, in writing only (via a Statement of Intervention and an accompanying witness statement dated 19 October 2018 from Ms Dana Pressman Tobak, Chief Executive Officer of Hyperoptic), in order to support the submissions of CityFibre and to provide an additional perspective as a business that does deal directly with consumers. Hyperoptic specialises in installing fibre broadband infrastructure to buildings containing multiple dwelling units, such as blocks of flats. A typical Hyperoptic customer would be an occupier of a dwelling in such a building, who chooses to subscribe to Hyperoptic's broadband service. Hyperoptic also deals with retail business users.
The Advertising Standards Authority
The first defendant, the Advertising Standards Authority Limited (“ASAL”), regulates non-broadcast advertising. The second defendant, the Advertising Standards Authority (Broadcast) Limited (“ASABL”), regulates broadcast (television and radio) advertising. ASAL and ASABL operate under the umbrella term “the Advertising Standards Authority” (“the ASA”). Where it is not necessary to distinguish between ASAL and ASABL, I use the “ASA” or “the defendant” in this judgment.
Each of ASAL and ASABL is a company limited by guarantee. Each has a Council comprised of 12 members, two-thirds of whom must be independent of the advertising industry. Each Council is the Board of the company to which it relates. The Decision was formally a joint decision of the Councils of ASAL and ASABL. The ASA Executive manages each of ASAL and ASABL and makes recommendations to the Councils, but the Councils are not bound by those recommendations.
ASAL was established in 1962 to provide independent oversight of the self-regulatory system set up by the non-broadcast advertising industry. An industry body, the Committee of Advertising Practice Limited (“CAP”), is responsible for drafting and updating a code known as the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (“the CAP Code”) and for writing authoritative guidance on the rules in the CAP Code. The members of CAP are organisations representing advertisers, agencies, the media and other intermediaries. The 12th edition of the CAP Code came into force on 1 September 2010 and was in force at all relevant times for the purposes of these proceedings. Since 2011 ASAL's non-broadcast remit has extended to advertising claims on a marketer's own website and in other non-paid-for space online under its control, for example, its social media accounts.
Historically, rather than self-regulation, broadcast advertising was subject to separate statutory regulation by other bodies, including, from 2003, the Office of Communications (“Ofcom”), the principal regulatory body responsible for regulating communications in the UK. In 2004 Ofcom contracted out most of its powers under the Communications Act 2003 to regulate broadcast advertising to (i) the Broadcast Committee of Advertising Practice Limited (“BCAP”), an industry body similar to CAP but focused on broadcast advertising, and (ii) ASABL. This was done initially for a ten-year period and then renewed for a further ten years in 2014. BCAP drafted a code for broadcast advertising, the UK Code of Broadcast Advertising (“the BCAP Code” and, together with the CAP Code, “the Codes”), which came into force on 1 September 2010 and was in force at all relevant times for the purposes of these proceedings. The general structure and content of the BCAP Code is similar to the CAP Code, but its focus, of course, is broadcast advertising.
There is now, therefore, a parallel structure for the regulation of non-broadcast and broadcast advertising. For the purposes of this claim, it is not necessary for us to distinguish between the two regimes. Each of CAP and BCAP is a company limited by guarantee, and each is independent of the ASA. Members of each of CAP and BCAP agree, through their Memorandum and Articles of Association, that they will promote compliance with the Codes by their members and take action, where appropriate, to secure compliance where a member fails to observe the relevant Code.
The ASA promotes and enforces standards for non-broadcast and broadcast advertising by reference to the Codes. The ASAL Council acts as the “jury” that decides whether an advertisement has breached the CAP Code, and the ASABL Council performs the same function in relation to the BCAP Code.
Procedural history
The claimant filed its claim to challenge the Decision by way of judicial review on 19 February 2018 on six grounds. The claimant's application for permission to apply for judicial review was initially refused by Mr Justice Dove on 10 May 2018 following a review of the papers. The claimant renewed its application at an oral hearing on 12 June 2018 at which Mr Justice Turner granted permission on all grounds.
On 5 September 2018 the parties signed a consent order granting Hyperoptic...
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R Actegy Ltd v The Advertising Standards Authority Ltd
...advertising industry was recently explained by Murray J in R (Cityfibre Ltd) v (1) the ASA Ltd and (2) the ASA (Broadcast) Ltd [2019] EWHC 950 (Admin) at [11]–[15]: “10. The first defendant, the Advertising Standards Authority Limited (“ASAL”), regulates non-broadcast advertising … 11. … A......