Cityfibre Ltd, R (On the Application Of) v The Advertising Standards Authority Ltd & Anor

The statutory average consumer is a hypothetical person or legal construct who is reasonably well-informed, observant and circumspect. The assessment is qualitative, not statistical. A regulator may use surveys or expert evidence to assist its judgment, but must determine the likely reaction of the average member of the relevant consumer group. It need not protect ignorant, careless or over-hasty consumers, nor assume that the average consumer possesses specialist knowledge of a particular product feature. In reviewing an expert regulator’s assessment of advertising, the court’s role is supervisory. A decision is not irrational merely because the court might have evaluated the evidence differently.

CityFibre sought judicial review of a joint decision by the Advertising Standards Authority bodies that advertisements describing part-fibre broadband as “fibre” broadband were unlikely to mislead consumers. The ASA had conducted a review involving stakeholder evidence, consumer surveys and qualitative research by Define Research & Insight Ltd.

The challenge alleged error of law in applying the average consumer test and irrationality in the ASA’s assessment of the evidence, including the technical advantages of full-fibre services and the research commissioned by CityFibre. The central questions were whether the ASA had applied the correct legal test and whether its conclusion had a rational evidential basis.

1. The claim was dismissed. The ASA had not erred in law or acted irrationally in concluding that unqualified references to “fibre” in advertisements for part-fibre broadband were unlikely to mislead consumers.
2. The average consumer is a legal construct linked to the population at which the advertising is directed. The relevant consumer is reasonably well-informed, reasonably observant and circumspect. The test does not require knowledge of every characteristic or feature of the product, or specialist understanding of the distinction between full-fibre and part-fibre broadband.
3. The average consumer test is qualitative rather than quantitative or statistical. The decision-maker must exercise its own faculty of judgment and may consider the general level of knowledge within the relevant consumer group, excluding ignorant, careless, over-hasty and insufficiently circumspect consumers. Independent research may be used to illuminate that judgment, but it does not replace it.
4. The ASA was entitled to begin by considering the characteristics and knowledge of actual consumers targeted by broadband advertising, and to use the Define research as evidence relevant to that exercise. Consumers who had first been educated about the advantages of full-fibre were no longer representative of the average consumer for the question being considered.
5. The ASA had taken account of the technical differences between full-fibre and part-fibre services. Its conclusion that those differences did not determine whether consumers understood the word “fibre” in advertising was rational. The research could properly be given greater weight than the Opinion Leader Report and other surveys, whose methodology the ASA considered less robust.
6. The court’s function was supervisory. It was not entitled to substitute its own assessment of the evidence for the expert regulator’s judgment where the ASA had directed itself correctly, considered the material evidence and reached a conclusion reasonably open to it. The ASA’s additional guidance concerning performance claims, speed claims and descriptions of technological advancement did not alter the conclusion.

The claim was dismissed.