Background
Summary of Council decision:
Three issues were investigated, of which one was Not upheld and two were Upheld.
Ad description
A direct mailing from Virgin Media stated "Hi, you've been specially selected to get this offer. Thousands of people call to join Virgin Media every day, and chatting to them made us realise there are a few myths out there about us. So let's set the record straight. If you've been thinking we don't compare to Sky, perhaps it's time to discover the truth. Plus, we've even got an exclusive offer just for you". The "Exclusive offer" was set out below, in the style of a sales receipt, and stated "This offer is not available to the general public Pick any package and get: • TiVo box Like a Sky+HD box, but you can record three programmes at the same time • Free extra recordable HD box Watch and record different channels in another room. (Sky charges up to an extra £11.25 a month for Multiroom) • HD channels included • BT Sport and ESPN channels included Sky TV and broadband customers are charged £15 a month and a one-off £15 activation fee • Free installation ... • Servicing and repairs included For all the time you're with us. (Sky charges £65 for every call-out when you're out of warranty.) ... Plus red hot savings for 6 months in our red hot sale ... Total first year saving worth: £214.95". Further text below stated "To clear up any confusion over what you get with us versus Sky, we've put together all of the information you need in the handy brochure enclosed".
On a second page of the mailing, a table entitled "Truthful comparison" compared "Virgin Media: TiVo Service" with "Sky+HD" and indicated that both services offered "Much-loved Sky channels such as Sky1 and Sky Living", "Sky Sports channels" and "Sky Movies channels". At the bottom of the page small print stated "Some offers attract an 18-month minimum term contract ... £214.95 first year saving: Based on taking TV XL and Phone M. Red Hot Sale worth £87, free installation worth £49.95, free extra box worth £6.50 a month (first year saving of £78) ... 18-MONTH MINIMUM TERM CONTRACT APPLIES ... Sky Sports 3 HD, Sky Sports 4 HD, Sky Sports News HD and Sky Sports F1 HD not included".
Issue
British Sky Broadcasting Ltd (Sky) challenged whether:
1. the ad was misleading, because it did not make adequately clear the basis of the £214.95 savings claim;
2. the claim "HD channels included" misleadingly implied that Sky customers did not get HD channels included in their TV package; and
3. the ad omitted material information regarding the differences between the services offered by Sky and Virgin Media which were likely to affect a reader's evaluation of the comparison.
Response
1. Virgin Media Ltd did not believe there was any ambiguity over the basis of the £214.95 savings claim. Whilst the letter did make reference to Sky in the initial paragraph and included some further references to Sky "features" within the "Offer" section, they believed it was clear that the stated savings claim was a comparison against what a customer would normally pay with Virgin Media. They said the saving was clearly related to the "Exclusive offer" being promoted within the letter and highlighted that the savings claim was positioned directly below the section of the letter headed "Exclusive Offer", which set out the features of the offer including "Free installation", "Free extra recordable HD box" and "Plus red hot savings for 6 months". They also stated that the small print stated "£214.95 first year saving: Based on taking TV XL and Phone M. Red Hot Sale worth £87, free installation worth £49.95, free extra box worth £6.50 a month (first year saving of £78)".
Virgin Media did not believe that the savings claim implied a saving against Sky. They highlighted that the first paragraph of the letter stated "If you've been thinking we don't compare to Sky, perhaps it's time to discover the truth. Plus, we've even got an exclusive offer just for you", and said they believed the reference to "an exclusive offer just for you" explained that the offer was separate to any comparison with Sky. Further, they said the offer section of the letter did not mention any Sky package or service, and that although the 'receipt' included aspects of the exclusive offer available to customers, some of which included an explanation of what the cost of that element was with Sky, the text "Plus red hot savings for 6 months in our red hot sale" made clear the saving claim related to Virgin Media’s non-promotional prices. They also asserted that they were able to include individual element comparisons against Sky within an ad without giving the impression that the entire content was a comparison against Sky.
2. Virgin Media did not believe that there was any implication that Sky TV did not include HD channels. They reiterated that the 'receipt' shown on the letter included the features of the Virgin Media offer, some of which differed in price or availability from those offered by Sky. They said there was no reference to Sky offering or not offering HD channels on the 'receipt'.
3. Virgin Media understood that Sky thought the comparison was misleading as it omitted key differences between their services including the fact that Sky TV included more TV channels than Virgin Media, that Sky TV was offered with a 12-month, rather than a 18-month minimum term contract, and that offers might be available with Sky. Virgin Media stated that both they and Sky offered a significant number of channels on their platforms, and they strongly rejected the notion that the omission of a reference to one of those channels not being available to Virgin Media customers was misleading, as there would invariably be differences in the channels offered by each. The fact that, for example, Virgin Media offered Sky Sports 1, 2, 3, 4 and F1, but not the last three in HD was not material to the comparison being made in the table. Similarly, they did not believe that the lack of reference to the minimum term contract for each service or the fact that Sky might have offers available made the comparison table or wider letter misleading. As there was no comparison between the cost of the two services, they believed that a statement explaining that there might, or might not, be offers available from Sky was outside the scope of the letter.
Virgin also believed that readers would understand that there were always nuances between the services offered by different providers and would not expect to glean every one of those nuances from a table such as the one shown in the letter. Finally, they stated that Virgin Media was able to make a comparison against some, all or none of the features available from Sky as long as any comparison being made was fair and accurate.
Assessment
1. & 3. Upheld
The ASA acknowledged that Virgin Media had intended the savings claim of £214.95 to be understood as a comparison between the price of their "Sky Switcher Offer" and their standard prices. However, we considered that was not clear and that the basis of the savings claim was ambiguous.
We noted that the savings claim appeared in the 'receipt' section of the mailing, under the heading "Exclusive Offer" and that footnote text explained that the saving was based on taking out a particular Virgin TV and phone package. We noted, however, that that footnote text was not linked to the saving claim and that the text introducing the offer stated "Pick any package and get …" before it set out the elements of the offer and stated "Total first year saving worth: £214.95". We considered that some readers were likely to interpret those claims to mean that that saving could be achieved regardless of the Virgin TV package they selected. Therefore, we considered the footnote text explaining the savings claim might be overlooked by a number of readers and contradicted rather than clarified the impression created in the body of the ad. We also noted that although further footnote text stated "Some offers attract an 18-month minimum term contract", it was not clear what contract length would apply for those taking up the "Sky Switcher Offer", or for those achieving the saving of £214.95.
In addition, we noted that the introductory paragraph stated "So let's set the record straight. If you've been thinking we don't compare to Sky, perhaps it's time to discover the truth" and that the ad included some specific examples of the similarities and differences between the service offered by both providers in the 'receipt' section and the table entitled "Truthful comparison". We understood that Virgin Media intended the comparison with Sky to be a general one rather than a comparison between a specific Virgin TV package and an equivalent product offered by Sky, and that they wished to promote an offer independent of that comparison. We considered, however, that the inclusion of comparisons throughout the mailing, including specific comparisons between the services offered by both, such as the fact both offered Sky Sports and Sky Movies channels, and that a consumer could record, pause and rewind live TV with both providers, meant that some consumers would instead understand that the savings claim was based on a comparison with the cost of a similar package from Sky. Further, in the case of such comparisons, we noted that the Code required material information, relevant to the comparison in question, to be clearly stated.
Because we did not consider that the ad clearly communicated that the saving related to Virgin Media’s standard prices, or that consumers would need to purchase a specific TV and phone package to achieve the maximum saving of £214.95, we concluded that the ad was misleading.
On those points, 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),
3.9
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),
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), and
3.39
3.39
Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises.
(Price comparisons).
2. Not upheld
We noted that the 'receipt' section of the mailing included a number of features of the "Exclusive offer" promoted by Virgin Media, some of which referred to how their offering contrasted or related to Sky's service, such as "TiVo box Like a Sky+HD box, but you can record three programmes at the same time". Similarly, we noted that some of the features did not refer to Sky and included no further qualification. On balance, we considered that most consumers reading the claim "HD channels included", would not understand the absence of any further explanation to mean that Sky's equivalent product did not include HD channels. Therefore, we concluded that the claim was not misleading.
On that 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.
(Qualification), but did not find it in breach.
Action
The ad must not appear in its current form again. We told Virgin Media Ltd to ensure they made clear the basis of their savings claims in future.
