Background
Summary of Council decision:
Four issues were investigated, of which three were Upheld and one was Not upheld.
Ad description
A national press ad, for BT's broadband services was headed "Official. BT Broadband offers better overall performance than Sky and TalkTalk. Superpower your broadband". Under an image of a cartoon man holding a wireless router, further text stated "Ofcom measured this in recent tests and found that on average BT has better performance for up to 16Mb customers. We thought you'd like to know". Small print at the bottom of the ad stated "... Broadband comparison: based on up to 16Mb broadband performance, November 2012 Ofcom broadband performance report. Speeds vary with location & line quality; external factors such as internet congestion can affect speed but BT will not slow you down".
Issue
BSkyB challenged whether:
1. the claim in relation to "overall performance" was misleading, because they understood that the Ofcom report the claim was based on had not taken into account Wi-Fi performance and would therefore not necessarily accurately reflect the end user experience for consumers;
2. the claim in relation to "better ... performance" was misleading and could be substantiated, because they did not believe it gave sufficient weight to upload and download speeds or web-browsing, and that the Ofcom report had not found a statistically significant difference between BT and Sky in relation to those characteristics;
3. the ad misleadingly implied that the claim "BT Broadband offers better overall performance than Sky and TalkTalk" applied to all of BT's broadband products all of the time, because they believed the reference to "up to 16Mb customers" was insufficiently prominent and contradicted the headline claim, and because the ad did not make clear that some BT customers on "up to 16Mb" services would be subject to a traffic management policy, and that fibre services were excluded from the comparison; and
4. the use of the term "official" misleadingly implied that Ofcom had endorsed the headline claim.
Response
1. British Telecommunications plc (BT) said they had based the claim on Ofcom's 2012 research report on UK fixed-line broadband performance, which had measured 18 broadband performance metrics, and that BT's performance had been found to be equal to, or better than, Sky's performance for all of those metrics. They advised that for eight of the 18 metrics there was no difference between Sky and BT; for six of the 18 metrics BT's broadband performed better than Sky's and the difference in performance was statistically significant to a 99% level of confidence; and for four of the metrics, BT's broadband performed better than Sky's with the difference in performance being statistically significant to a 95% level of confidence. They said they were therefore confident they could substantiate the claim in relation to "overall" performance. With regard to the wireless performance issue raised by Sky, they told us that, whilst the Ofcom report did not take into account wireless performance, their Hub 3 router featured 802.11n 2x2 wireless and could therefore be expected to provide the same performance as those supplied by other Internet Service Providers (ISPs), particularly as both BT and Sky's routers featured an interference performance feature. They accepted that the performance of broadband over Wi-Fi may differ from that delivered over a wired connection, but told us that they expected BT customers using their latest Hub would experience similar Wi-Fi performance to Sky's customers. They further felt that the fact the ad referred to BT broadband having better performance than Sky "on average" meant that, even taking into account any potential differences in Wi-Fi performance, the claim was unlikely to mislead.
2. BT said the ad referred to "better overall performance", rather than specifically referring to ADSL download speeds and therefore they did not feel the ad was misleading.
3. BT said that text in the middle of the ad clearly stated that the claim only applied to the up to 16-Mb customers, who made up the majority of their customer base. They felt that given the prominent reference to 16-Mb customers, in a simple text-light ad, viewers were unlikely to be misled as to which BT products the claim applied to. They further confirmed that new broadband customers were not subject to traffic management and that the minimum speed for their fibre service was "up to 38Mb".
4. BT said they were confident the Ofcom report supported the claim that their broadband offered better overall performance than Sky and because the report described the research undertaken as "the most robust presentation of UK fixed-line broadband speeds available" they were comfortable with their use of the claim "official".
Assessment
1. Upheld
The ASA noted that BT had based the claim on an Ofcom report from November 2012, that had compared the fixed-line broadband performance of a number of ISPs, including Sky and BT, and which had looked at a range of metrics affecting broadband performance. Whilst we considered that the range of metrics considered in the report meant it was capable of substantiating a claim in relation to overall fixed-line broadband performance, we noted that the scope of the report did not include a comparison of the various ISP's Wi-Fi performance. We considered that, in the absence of any statement to the contrary, consumers were likely to interpret an overall performance claim as encompassing Wi-Fi performance, particularly when the cartoon man featured in the ad was shown holding a wireless router aloft. We acknowledged BT's argument that, due to its technical specification, the Hub 3 router was likely to offer similar performance to Sky's and therefore the findings of the report were likely to remain valid, although we noted we had not been provided with any evidence to demonstrate that that was in fact the case. However, because the overall performance claim was explicitly stated to be based on Ofcom's report and that report had not considered Wi-Fi performance, we concluded that the ad was misleading.
On this point, the ad 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.
(Substantiation) and
3.33
3.33
Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.
(Comparisons with identifiable competitors).
2. Upheld
Whilst the we accepted the Ofcom report had found that BT's performance in respect of 18 metrics associated with broadband performance was either equal to, or better than, Sky's, we considered that consumers viewing the claim about broadband performance, were likely to interpret the claim largely in the context of broadband speed because this was the factor which was most likely to impact on their end-user experience when using the internet. Additionally we noted that the cartoon man's shadow which was shown on the wall behind him, took the form of a superhero holding a broadband router, with his cape and hair flowing behind him, which we considered implied that the performance claim was largely related to speed. We understood that download speed was the factor most commonly associated with overall broadband speed and that the Ofcom report had not found that there was any significant difference between BT and Sky in that regard. Because we considered that the ad implied BT customers were likely to experience significantly greater broadband speeds than Sky customers, we concluded that the ad was misleading.
On this point, 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), 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) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
3. Not upheld
We noted that BT had clearly stated in the body copy of the ad that the headline claim related to "up to 16Mb customers" and that those customers formed the majority of their customer base. We further acknowledged that traffic management policies would not have applied to new customers on any of BT's broadband packages; and that the lowest speed offered on their fibre service was "up to 38Mb", which we understood also applied to Sky's fibre service. We considered that consumers were unlikely to interpret the claim as relating to high speed fibre services in view of the qualification stating that the claim applied to "up to 16Mb" customers. Because we considered that the qualifying information was sufficiently prominent, we concluded that the ad was not misleading on that point.
On this point, we investigated the ad under 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) and
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification) but did not find it in breach.
4. Upheld
Whilst we acknowledged that the Ofcom report described itself as "the most robust presentation of UK fixed-line broadband speeds available", we noted the report had limited itself to comparing the ISP's performance in relation to a number of individual metrics and that it had nor drawn any overall conclusions with regard to whether any one ISP's performance was better than another. Rather, we noted Ofcom had stated that it was important consumers understood the impact the various metrics would have on broadband performance, so they could choose the service that would best meet their individual needs. We therefore considered that it was misleading for BT to imply that the headline claim was taken directly from Ofcom's findings, rather than their own interpretation of them, when that was not the case.
On this point, 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 3.50 3.50 Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation. (Endorsements and testimonials).
Action
The ad must not appear again in its current form.
CAP Code (Edition 12)
3.1 3.10 3.3 3.33 3.50 3.7 3.9
