CityFibre advertising standards complaint over fibre broadband rejected

CityFibre considers appeal after judicial review comes down on the side of the Advertising Standards Authority

CityFibre has lost its battle with the Advertising Standards Authority (ASA), allowing conventional fibre-to-the-cabinet (FTTC) providers to describe their services as ‘fibre'.

CityFibre, a company that is building a pure fibre network, currently reaching five million premises, had argued that the advertising of its rivals was false because the last stretch of the connection would typically be copper, rather than fibre. Its CEO Greg Mesch has described FTTC services as "fake fibre".

The ASA, however, had dismissed its complaint, made in November 2017, leading CityFibre to file for a judicial review of the ASA's decision.

However, in a judgement handed down yesterday, Justice Murray dismissed CityFibre's argument that allowing FTTC services to be marketed as fibre is misleading.

"It is the claimant's case [CityFibre] that full-fibre infrastructure is technically superior to part-fibre infrastructure in a number of important respects. The defendant [the ASA] accepts this, for the most part, but takes the view that the position is more ‘nuanced' than the claimant maintains," wrote Justice Murray in his summary [PDF].

However, Murray dismissed CityFibre's argument that the ASA's judgement was irrational. He added that CityFibre's argument was fundamentally flawed.

"CityFibre starts its analysis with the question: what does a theoretical average consumer need to know in order to be a reasonably well-informed average consumer? That is not the right approach.

"The ASA starts its analysis with the question: what is the level of knowledge of a theoretical average member of the group of consumers at whom the advertising is targeted? That is the right approach.

"The goal is to protect consumers at whom the relevant advertising is targeted from being misled, and therefore the general level of knowledge about the product or service being advertised needs to be judged by reference to that group."

As such, what the average consumer understands by the term ‘fibre' when use in advertising broadband services is what counts, and the research cited by CityFibre therefore did not back up its claims.

However, Mesch said that CityFibre is considering an appeal.

In a statement, he said: "The decision is particularly disappointing in light of the recent progress made in other countries which have restricted misleading advertising and established clear rules to distinguish full-fibre from inferior copper-based services.

"We are currently considering appealing the judgement and would like to thank the thousands of people that joined our campaign and signed our petition for change."