Background
Summary of Council decision:
Two issues were investigated, of which both were Upheld
Ad description
Two ads for a telecommunications company including one website ad featuring Usain Bolt, and a sponsored search engine ad:
a. The website, virginmedia.com, was headed "Hi, I'm Richard Branson and I'm doubling everyone's broadband speeds" and text stated "I was taking the balloon for a ride the other day and got thinking: 'These days, everyone's doing more and more online. We all tweet, shop, play, video-chat, even watch HD movies.' Then it hit me 'My customers already have the UK's fastest broadband, but they'd get a lot more enjoyment out of it if I doubled their speeds.' So that's what I'm going to do for over 4 million Virgin Broadband customers. Because I can. See when I'm doubling yours". Below the text was a text box for customer's to input their postcode. Small print stated "Important information Cabled areas only. Fastest broadband download speeds widely available to consumers according to 2009 - 2011 Ofcom reports. 100Mb customers will see price-cut instead of speed doubling. Dates are based on our current engineering plans and may be subject to change as we develop a more detailed schedule based on your personal requirements. For example, we may need to undertake further upgrades in your area before the speed increase. Some customers may also require an installation visit to ensure they receive the full benefit of the upgrade. Postcode checker is based on existing customer information, new customers may be upgraded later than the dates displayed".
b. Text on a sponsored search engine ad stated "Virgin Media Customers ... Richard Branson's doubling your broadband speed. Find out more".
Issue
British Sky Broadcasting challenged whether the claims:
1. "Cabled areas only" and "100Mb customers will see price-cut instead of speed doubling" in the small print in ad (a) was misleading and contradicted the main claim.
British Sky Broadcasting and two members of the public also challenged whether:
2. "I'm doubling everyone's broadband speeds" in ad (a) and "Richard Branson's doubling your broadband speed" in ad (b) were misleading, because exclusions applied.
Response
1. Virgin Media Ltd (Virgin) stated they did not believe the claims were misleading or contradicted the main claim. They said because all existing 100 Mb customers were notified that their speed would not be doubled, those customers had therefore not been misled.
2. Virgin said they had sought CAP Copy Advice in respect of that particular campaign. They stated all existing 100 Mb customers received a communication as to how the service changes would affect them. In relation to other exclusions, they said they made it clear that the speed doubling programme would take 18 months to complete and they notified broadband customers that the upgrade would happen by area. They said they directed customers to the Virgin Media website to find out more information and they did not consider that their customers had been misled.
Assessment
1. & 2. Upheld
We understood that CAP Copy Advice had advised Virgin that the claim "I'm doubling everyone's broadband speeds" would be problematic if there were any exclusions and that the claim could have made clear that it was intended to refer to Virgin customers only.
We noted the headline claim in ad (a) stated "I'm doubling everyone's broadband speeds" and that it was used in conjunction with the reference in the body copy to "my customers", which we considered gave the overall impression that the ad was aimed at existing Virgin customers. We therefore considered consumers would interpret the ad to mean that all existing Virgin customers would have their broadband speed doubled. We understood that 100 Mb and non-cable broadband customers would not have their broadband speeds doubled and we therefore considered the text "cabled areas only" and "100Mb customers will see price-cut instead of speed doubling" directly contradicted the headline claim. Because the exclusions contradicted the main headline claim and because not all Virgin customers would have their broadband speeds doubled, we concluded that ad (a) was misleading.
We considered consumers would interpret ad (b) to mean that all consumers who have or could get the Virgin service would have their broadband speed doubled. Because we understood that not all non-Virgin customers and Virgin 100 Mb and non-cable broadband customers would have their broadband speed doubled, we concluded that ad (b) was misleading and that the exclusions contradicted the main claim.
On these points, the ads breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
and
3.8
3.8
Claims for the content of non-fiction publications should not exaggerate the value, accuracy, scientific validity or practical usefulness of the product. Marketers must ensure that claims that have not been independently substantiated but are based merely on the content of a publication do not mislead consumers.
CAP has published a Help Note on the Marketing of Publications.
(Substantiation),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.22
3.22
Price claims such as "up to" and "from" must not exaggerate the availability or amount of benefits likely to be obtained by the consumer.
(Prices).
Action
The ads must not appear again in their current form. We told Virgin not to imply they were affecting the service of all their consumers if this was not the case.
