Trade Disputes Panel Decision Summary - Advertiser Bell Mobility

Complaint:

A complaint was filed by an advertiser under ASC’s Trade Dispute Procedure (Procedure) alleging a breach of the Canadian Code of Advertising Standards (Code). The complaint related to advertising in various forms, including inserts, newspapers, billboards and radio, by Bell Mobility Inc. (Bell). The advertising made the claim that Bell had the “fastest and largest network across North America” in connection with “smart phones” and services for them. The complainant, Rogers Wireless Partnership (Rogers), only took issue with the part of the claim that related to speed – “the fastest…network across North America.”

Procedure:

Although provided with an opportunity to respond to the allegations and to participate in the Trade Dispute Hearing (Hearing) convened to adjudicate the complaint, Bell objected to the process and chose not to respond or participate in it. As allowed for in the Procedure, a hearing was held without Bell’s participation and with evidence provided only by Rogers.

Trade Dispute Panel Hearing:

The Hearing was held on October 24, 2008, and a five-member Trade Dispute Panel (Panel) of advertising industry and public representatives, chaired by an independent lawyer, carefully considered the complaint and all the evidence presented by Rogers. This evidence included:

1. An examination of the complained-of advertising (English and French-language);
2. A consideration of the technology used by each of Bell and Rogers in the provision of their respective cellular wireless telephone service;
3. Transmission speed, both theoretical and actual, of Bell’s service using the EVDO technology compared to Rogers’ HSPA technology; and
4. The results of market research conducted by an independent research company in September 2008, in which a representative population of Canadian consumers were invited to react to the statement “the fastest and largest network across North America” as found in an actual Bell Mobility advertisement that appeared in the market.

The Panel understood that some, but not all, of the advertising at issue included disclaimer copy in small type that qualified the claim (e.g. “The 1xEVDO network is the fastest high speed mobile network that is available across all countries within North America").

In the Panel’s opinion, the general impression communicated by the claim was that the Bell wireless network was faster than its competitors in each of the countries that make up North America, including Canada.

Decision:

Based on the evidence before it, the Panel concluded that Bell’s advertising claim was inaccurate and therefore contravened Clauses 1(a), (b) and (d) and 6 of the Code.¹

Response by Bell:

Bell was advised of the Panel’s decision on October 31, 2008, and was requested to withdraw or amend the advertising in question. Bell responded that, in its view, the advertising complies with all applicable Canadian legal requirements and that it continues to dispute the Panel’s jurisdiction and decision since Bell is not an ASC member and chose not to participate and present its own evidence.

Status:

Following the Panel’s decision, Bell continued to use the advertising claim from time to time. Therefore, in accordance with Paragraph 6.11 of the Procedure², ASC took the steps of advising exhibiting media and publishing this decision.

¹ Canadian Code of Advertising Standards
1. Accuracy and Clarity
a) Advertisements must not contain inaccurate or deceptive claims, statements, illustrations or representations, either direct or implied, with regard to a product or service. In assessing the truthfulness and accuracy of a message, the concern is not with the intent of the sender or precise legality of the presentation. Rather, the focus is on the message as received or perceived, i.e. the general impression conveyed by the advertisement.
b) Advertisements must not omit relevant information in a manner that, in the result, is deceptive.
d) Disclaimers and asterisked or footnoted information must not contradict more prominent aspects of the message and should be located and presented in such a manner as to be clearly visible and/or audible.
6. Comparative Advertising
Advertisements must not, unfairly, discredit, disparage or attack other products, services, advertisements or companies, or exaggerate the nature or importance of competitive differences.

² Trade Dispute Procedure
6.11 Failure to Co-operate with Procedure or Comply with Decision
If a defendant Advertiser fails to voluntarily comply with the decision of a Trade Dispute Panel or, if applicable, a Review Panel or Appeal Panel, or otherwise fully satisfy the provisions of Paragraph 5.8 above, ASC:
a) will advise exhibiting media of the defendant Advertiser’s refusal to co-operate and request media’s support in no longer exhibiting the Advertising in question; and
b) may notify the public, in such manner as ASC deems appropriate, that the Advertising in question (identifying the defendant Advertiser) has been found to violate the Code.