CityFibre calls BS on high court fibre ruling

The UK high court has rejected CityFibre’s appeal against an ASA ruling that it’s OK to market copper connections as ‘fibre’.

Back in 2017, while ruling that the use of ‘up to’ speed claims was misleading, the Advertising Standards Authority also concluded it’s fine for advertising to refer to fixed line connections that contain some copper as ‘fibre’. The rationale seemed to hinge on some research that concluded consumers aren’t very influenced by the term and that it’s just a generic indicator of superior speed anyway.

These are clearly highly questionable conclusions. Fibre obviously refers specifically to optical technology that produces far superior performance to even the most advanced copper. Furthermore if consumers don’t know that surely at least part of the reason because they’ve seen copper referred to as fibre. Lastly if it’s of so little consequence in influencing consumer buying decisions then why is it so widely used in marketing?

Fibre specialist CityFibre wasn’t happy with this woolly definition of fibre, quite reasonably concluding that it presented a direct threat to its main unique selling point, and managed to get the high court to conduct a judicial review of the ASAs conclusions on fibre marketing. Yesterday Justice Murray announced his conclusion that he had no problem with the ASA’s decision.

“I am not persuaded by the claimant that the Decision was irrational,” wrote Murray. “It is clear from the evidence that the ASA had regard to the recognised benefits of full-fibre. The differential between part-fibre and full-fibre broadband services was, in fact, reflected in the guidelines set out in the ASA’s conclusions in the Decision. The ASA’s conclusion that the technical superiority of full-fibre over part-fibre was not relevant to the question it had set itself (namely, what consumers understand by fibre claims in broadband advertisements) was not irrational.”

“We are disappointed by today’s result because we continue to believe it is not right for consumers to be misled into thinking copper-reliant connections are ‘fibre’ broadband,” said Greg Mesch, CEO of CityFibre. 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.

“Full fibre infrastructure is being deployed at pace in the UK and will soon be within reach of millions of consumers. We welcome the Government’s recognition of the need for clarity in broadband advertising to ensure consumers can make an informed choice. We are also encouraged by DCMS’s focus on this critical issue in its proposed Statement of Strategic Priorities. The technical benefits of full fibre infrastructure are unquestioned and we will continue to work closely with DCMS, Ofcom and the ASA to ensure consumers are able to distinguish full fibre networks from copper-based alternatives.”

“We welcome the Court’s decision which finds in the ASA’s favour on all grounds and dismisses CityFibre’s arguments,” said an ASA statement. “The review of the evidence we undertook to arrive at our position on the use of the term ‘fibre’ to describe part-fibre services in ads was based on robust methodology and open minded analysis of all of the arguments. The process we followed to test if the average consumer is being misled by the use of the term “fibre” to describe part-fibre services is the one we have used to protect UK consumers from misleading advertising for many years and we are pleased that the Court has supported our approach after a hard fought legal process.”

While we’re the first to call out Mesch and CityFibre for excessive moaning it’s hard not to feel sympathy for them in this case. While the average consumer probably won’t know much about the underlying technology, if they buy something sold as fibre, they presumably expect it to be fibre. Since it’s known that the presence of and copper significantly reduces the performance of an otherwise fibre connection, for the term to mean anything it should surely mean 100% fibre.