Mobile operator MTN has dragged its competitor Cell C to the Advertising Regulatory Board (ARB) over the “Now on SA’s Best Network” advert appearing across various media formats.
In the complaint, MTN provided 13 examples taken from Cell C’s website, promotional booklets, Facebook, various outdoor media, Instagram and X (formerly Twitter), as well as in-store.
MTN, which is SA’s second-biggest mobile network operator, objected to the claim made by Cell C, and argued it is deliberately crafted to mislead.
It explained that Cell C’s network coverage is largely dependent on its partnership with other mobile networks in the country (of which MTN is only one).
Cell C, South Africa’s fourth-biggest mobile operator, does not own a mobile network but roams on the networks of Vodacom and MTN.
In its arguments to the advertising watchdog, MTN referenced independent network testing, which showed that MTN had SA’s best network in terms of network performance, reliability and speed.
It submitted that Cell C was claiming an accolade that was not awarded to it, but to its competitor. MTN said Cell C is attributing this award to its own network through inference when, in reality, customers are actually roaming on the MTN network (or, in some instances other mobile provider networks) when experiencing best network performance.
MTN noted there is no evidence to support the suggestion that Cell C provides SA’s best network. However, it states the overall interpretation of this message is likely to be exactly that.
The company alleged the claim is phrased in a deliberately “dishonest and misleading” manner, and communicates a claim that has no actual relevance to Cell C’s network.
Out of context
In response, Cell C submitted that it is not a member of the ARB, and is not subject to the ARB code or the jurisdiction of the ARB. Regardless of this, and in the interest of transparency, it addressed the merits.
It submitted that it was common knowledge that Cell C customers roam on MTN and Vodacom networks.
Both of these networks are commonly recognised (through independent testing) to provide the best network connection (often alternating in areas where one outperforms the other), the fourth-biggest network said.
“Given that Cell C is roaming on MTN and Vodacom’s networks, it is neither dishonest nor misleading to consumers to state that Cell C is now on SA’s best network as both MTN and Vodacom are ranked as the best in various network segments and in different provinces,” Cell C said.
“The tests to rate various network segments are conducted by independent third-parties and Cell C did not alter what was reported by such independent third-parties. It is, therefore, an undisputed fact that Cell C is roaming on its competitors’ networks, which are ranked as the best in various segments and various parts of the country.”
Cell C also stated the claims do not communicate that it has the best network. It merely communicates that Cell C is now on SA’s best network, a claim which is evidently true, as supported by the various accolades and awards referenced by the complainant and other relevant industry testing, it added.
According to the ARB, MTN submitted that the following provisions of the code were relevant to this dispute: honesty, substantiation, misleading claims, and cellular telephones and mobile networks.
“Before considering this issue, it should be noted that the title of SA’s best network has been fiercely contested by South Africa’s mobile network operators, and has been the subject of several advertising-related disputes,” says the ARB.
“In fact, rivalry among mobile network operators who make such a claim (or similar claims of superiority) was so severe that a specific provision was drafted and ultimately incorporated into the Code of Advertising Practice. This was specifically done to curtail disingenuous attempts to exploit consumer credulity, circumvent other provisions of the code, or otherwise cause confusion or deception.”
The watchdog points out that Clause15.3 of Section III states that any direct claims of mobile network superiority must be properly couched to ensure transparency and avoid ambiguity.
When mobile network superiority is being claimed or implied, it says such claims should be phrased in a manner that immediately alerts consumers as to the nature of the superiority being claimed.
In addition, Clause 2 of Section II reads: “Advertisements should not be so framed as to abuse the trust of the consumer or exploit their lack of experience, knowledge or credulity. Advertising should be prepared with a sense of responsibility to the consumer.
“Finally, Clause 4.2.1 of Section II reads: Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer.”
The essential question here is what the average consumer’s likely takeout would be when faced with the advertiser’s claims, the watchdog notes.
Wrong impression
It points out that it appears to be common cause that Cell C is not awarded a best network status by any independent test or award, and it is making the claim “Now on SA’s Best Network” based on the fact that it uses Vodacom and MTN infrastructure.
“The first thing to note in this regard is that the advertisements mostly encourage consumers to switch to Cell C (by implication from its competitors). Virtually all the examples provided by the complainant contain phrases to this effect, and most include the hashtagˑ#SwitchToSee.
“The overwhelming message to consumers is that they should leave their current network in favour of Cell C. The impression created is that only if you switch, will you now be on SA’s best network. The reality is that depending on where you are, if you switch, you will, at best, remain on the same network if you switched from either Vodacom or MTN.”
The ARB adds that by including the word “now”, by encouraging consumers to switch and by limiting the claim to a singular network, the advertiser appears to be exploiting consumer credulity and creating the impression that Cell C offers the best network.
“It is unlikely that consumers would interrogate the claim beyond face value, or that they would bother to scrutinise the advertiser’s website to try and find an explanation that aligns with that provided to the ARB in response to the complaint.”
By virtue of its ambiguous wording, the claim is likely to deceive consumers in a manner that contravenes Clause 4.2.1 of Section II of the Code, said the ARB.
Members of the ARB are, therefore, requested not to accept any advertising promoting this claim by Cell C, it concludes.
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