What is an an ‘average consumer’? That is a question regulators frequently have to ask themselves in ensuring that the public is not subjected to misleading advertising. The High Court gave invaluable guidance on the issue in a case concerning the provision of broadband to homes and businesses.
The case concerned the distinction between ‘full-fibre’ broadband, which involves data being transmitted via optical fibre cables which run directly into subscribers’ premises, and ‘part-fibre’ broadband, in which such cables terminate at street cabinets, with the final stage of the data’s journey being via a copper cable.
A wholesale builder and operator of full-fibre infrastructure sought judicial review of a decision of the Advertising Standards Authority (ASA) that advertisements which describe part-fibre services by reference to the unqualified use of the word ‘fibre’ are unlikely to mislead consumers.
In dismissing the challenge, the Court noted that the ASA had based its decision on independent research indicating that the term ‘fibre’ is not one of the priorities identified by broadband consumers and is not a key differentiator. It was seen as one of many buzzwords used to describe modern, fast broadband and its use in advertising did not act as a trigger in choosing one package over another.
The Court noted that, although the average consumer is a hypothetical construct, in an advertising context the concept is necessarily linked to a population of actual people: consumers at whom the relevant advertising is targeted. The ASA was therefore entitled to proceed on the basis that average consumers of broadband are reasonably well-informed and observant, rather than ignorant, careless or over-hasty.
The ASA was obliged to judge the general level of knowledge of the theoretical average consumer before they were specifically educated about the distinction between full-fibre and part-fibre broadband and the advantages of the former over the latter. It had recognised those advantages in its decision, which could not be viewed as irrational.