Cityfibre Ltd, R (on the application of) v Advertising Standards Authority

This is an application for permission to challenge the decision of the Advertising Standards Authority ("ASA") with respect to the advertisement of broadband facilities. The single judge on paper declined to give permission and this is an oral application in the same terms.

The basis of the challenge takes as its central point a complaint that there are some, indeed the majority of, broadband providers who advertise their products as being fibre products. There is a distinction to be drawn, which is not disputed, between those products which rely on fibre from the transmitting station into the individual home and can therefore properly be described as 'full fibre', and those which take the optical fibre transmission part way, but the last lap to the home of the consumer is provided in a different way, for example, copper, and each part fibre provider has its own variation in terms of the way in which the relevant signal eventually ends up in the home of the customer.

The claimant in this case is representative of an as yet relatively small group of companies occupying a relatively small percentage of the market for providing broadband services, who take issue with the way in which the larger providers, such as Virgin and others, advertise their products without distinguishing between full and part fibre means of delivering the signal.

The advantages of a full fibre system lie mainly, but not exclusively, in relation to the issues of speed and also a greater degree of symmetry between the amount of data that is capable of being downloaded, and the amount of data which is capable of being uploaded in an asymmetric system.

The decision of the ASA was based on an assessment that the companies who provided the part fibre product were not misleading customers, whether by omission or otherwise, by not going further and differentiating their product as to the label which is attached to it from the full fibre product. As part – and I stress 'part' – of their process of analysis prior to the making of the decision they had regard to the conclusions in, and body of, a report produced by an organisation called Define, who carried out research in relation to a number of participants with the object of informing the ASA as to the basis upon which they would, at least in part, base their conclusion in response to the complaint made by the complainant.

The criticisms made of the decision of the ASA are many and various and, since this is a permission appeal, I do not intend to cover them in any detail. Suffice it to say they include the contention that the bullet points (three in number) in the executive summary of the Define Report were strongly relied upon by the ASA in reaching its conclusion, and those bullet points are seriously misrepresentative of the findings in the actual body of the report to which it is alleged the ASA gave less and, in parts, low specific consideration.

It is also contended on behalf of the claimant that the report itself revealed that when participants were given instruction and information as to the difference between full and part fibre products they continued, at least for the most part, to be unable to distinguish between adverts as to who was advertising what product. The issue is also raised that the way in which the ASA took into account transactional contingents, in terms of the extent to which they would have made a different choice had the advertising been appropriate, was not adequately dealt with, if it were relevant, in the ASA's approach, to the extent that the participants were left with the clear and uncontradicted impression that, at least by and large, they thought the fibre product would cost them a significantly higher sum of money.

The response to that, it is said on behalf of the ASA that there are a number of perfectly proper bases upon which the ASA decision, and the reasoning behind it, could be fully supported. One of the strongest of these is that the concept of fibre should not be regarded as one of central significance here. Customers are interested in price, and interested in speed and reliability, and the concept of full fibre or part fibre is effectively subsumed within the parameters of those individual considerations, and that the focus on the concept of part fibre or full fibre misses the main point. That is merely one example of the responses given on behalf of the ASA and, as with the claimant in this case – because this is an application for permission rather than the full-blooded hearing – I am not going to take up a disproportionate amount of time as if I were determining the actual merits, in substantive form, of this application.

Standing back from all of this material I am satisfied that there is a sufficiently arguable case to pass the threshold laid down in the CPR for permission to judicially review the decision and, in those circumstances and for the reasons I have given, I will give such permission. I do not, however, give permission for the grounds to be amended to include matters relating to the statistical adequacy or robustness of the report provided by the ASA. I am entirely confident that the level of intensity of review which will be required on any substantive challenge would not be assisted by that form of exegesis, and therefore I refuse permission for that amendment to be made.

MR JUSTICE TURNER: Yes, well, I notice that counsel have been very patiently waiting for this half hour application to finish, and I am not going to disappoint them by rising at this stage and taking a long time to come back. So it will be no discourtesy to me if all those who are involved in the sitting case were to pack up and go.