Ad description
Claims on the website www.virginmedia.com, for broadband services, included "Up to 60Mb broadband … Perfect for families … What you get with up to 60Mb broadband A fantastic tariff for a few of you who like to do a lot online, fast. Ideal for downloading music and HD movies quickly, seamlessly and often. Up to 60Mb is 7 times faster than the UK average broadband speed, letting you download a music track in less than two seconds or a 1GB movie in less than three minutes". The ad included a table that was headed "Average download times with up to 60Mb broadband Album 9 secs TV show 54 secs Movie 2.5 mins HD movie 10 mins". The ad included a large amount of small print, which included "Downloading … Traffic Management operates from 4pm to 9pm and 10am to 3pm to ensure a consistent user experience".
Issue
The complainant challenged whether the ad was misleading, and the claims "Average download times with up to 60Mb broadband Album 9 secs TV show 54 secs Movie 2.5 mins HD movie 10 mins" could be substantiated, because he understood users were unable to download material in the average durations stated in the ad.
Response
Virgin Media said during their evening peak period only, which operated from 4 pm to 9 pm, customers on the 60 Mbit/s service would be managed to 30 Mbit/s for the next five hours, once they reached a threshold of 5 GB. They said it was correct to state that a customer could download an HD film in an average of ten minutes with their up to 60 Mbit/s service, even at peak times. They said the average file size of a two-hour HD film was 4 GB; the small print had incorrectly stated that the download duration claim for a HD film was based on a size of 5 GB, however, it was being updated to state 4 GB. They said the calculation of the average download time for an HD film was based on them achieving 90% of their numerical maximum speed, at which it would take 9.9 minutes to download 4 GB. However, monitoring of their service by an independent organisation indicated that the average time it currently took to download a film on their up to 60 Mbit/s service would be nine minutes. They said the results from that monitoring took into account traffic management where relevant.
Virgin Media said that even during peak times when traffic management applied, their up to 60 Mbit/s service allowed users to download music and films "quickly, seamlessly and often". For example, during a peak five-hour period of traffic management, up to 15 HD films could be downloaded and during a full 24-hour period up to 115 HD films could be downloaded. They said the up to 60 Mbit/s service allowed users to download an HD film during peak times without being traffic managed and, in addition, the ad detailed when the traffic management restrictions applied and provided a link to full details of the traffic management policy. They said that text was being updated to make even clearer that heavy users' downloading experiences might be affected. They did not believe that the ad was misleading, because it was possible to download an HD movie in ten minutes even during peak times and because the ad made clear the details of the traffic management policy and when it applied. Virgin Media provided a table that included examples of the number of films that could be downloaded at particular times as well as links to information about the average file size of a two-hour HD film and to the website of the independent speed monitoring service.
Assessment
Upheld
The ASA noted that the ad referred to the average duration of download for each of the types of content listed using the advertised service. We noted Virgin Media provided a link to the website of the independent speed monitoring service but considered that we had not seen sufficient evidence related specifically to the average download durations achieved by users on the up to 60 Mbit/s service for albums, TV shows, films or HD films, taking into account relevant factors such as the effect of traffic management. We therefore considered the download duration claims had not been substantiated.
Furthermore, we noted the duration of download claims were not qualified and considered consumers were likely to interpret them to mean that they could download the material at any time of the day, on average, in the time stated; for example, they would be able to download an HD film in an average of ten minutes at any time of day. We considered consumers would expect that they would be able to do so on multiple occasions without being restricted, in particular given the text "Perfect for families" and "A fantastic tariff for a few of you who like to do a lot online, fast. Ideal for downloading music and HD movies quickly, seamlessly and often". We noted, however, that Virgin Media customers on the up to 60 Mbit/s service who downloaded more than one HD film, for example, during evening peak hours would breach the download limit. We noted their speed would then be restricted to 30 Mbit/s and that users would not, therefore, be able to download more than one HD film in ten minutes during evening peak hours.
We acknowledged that small print stated "… Traffic Management operates from 4pm to 9pm and 10am to 3pm to ensure a consistent user experience" and included a link to the full details of the traffic management policy. We considered, however, that was not sufficient to make clear that the traffic management policy meant users' numerical maximum speeds might be restricted in such a way that they could not download the material in the average times listed if they breached the 5 GB download limit during peak hours and that the download limit could be breached by downloading more than one HD film. We considered that was a significant factor that affected the advertised service and that it therefore should have been made clear in the body copy of the ad.
Because Virgin Media had not provided sufficient evidence to support them and because they were not adequately qualified, we concluded that the duration of download claims were misleading.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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. (Substantiation).
Action
The ad must not appear again in its current form. We told Virgin Media to ensure that they held appropriate substantiation to support their future duration of download speed claims, which took into account all relevant factors that affected user speeds. We also told Virgin Media to ensure that significant factors that affected the achievability of such claims, such as traffic management, were prominently explained in the body copy of future ads.
