Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TV ad for TalkTalk, offering free unlimited broadband, stated "TalkTalk would like to wish everyone a … free year. With totally unlimited broadband, free for a whole year, all you pay is £16.70 monthly line rental. Celebrate TalkTalk's best deal. With sparkling speeds of up to 17 meg, and a network connection that's a whopping 99.9% reliable. Totally unlimited broadband that's free for 12 months, helping you save all year round … Switch today. Visit talktalk.co.uk/sale or call 0800 XXX XXXX. TalkTalk: TV, broadband, mobile and phone". On-screen text stated "£30 connection fee may apply".
Issue
1. Three viewers challenged whether the claim that the network was "99.99% reliable" was misleading and could be substantiated.
2. One viewer, who understood the offer was only available to new customers, challenged whether the ad misleadingly omitted that information.
Response
1. TalkTalk Telecom Ltd said the claim was based on an industry-standard measure of overall uptime of their network, known as "availability". They explained that "availability" showed the percentage of time a network was up and running over a defined period. They said they measured their availability of telephone exchanges from January to August 2014, which was calculated to be 99.9986%. They said other factors beyond TalkTalk's control might affect availability, which was explained in the promotion's terms and conditions.
Clearcast provided a summary of the substantiation for the claim. They said TalkTalk had explained in detail how the 99.99% figure was reached and what tests were undertaken.
2. They said they did not consider the fact the offer was only available to new customers to be material information and, therefore, it was not included in the ad. However, it was included in the promotion's terms and conditions. They also said the use of the phrase "switch today" in the voice-over, as well as the fact that the ad was a direct response ad, made it clear that the promotion was only available to non-TalkTalk customers. They said they had not received any complaints about the ad before.
Clearcast said the claim "Switch today" made it clear that the offer was available to customers switching, and therefore new customers. They said that information was included in the terms and conditions and was made clear when a viewer contacted TalkTalk. Therefore, they believed on-screen text stating "new customers only" was not needed.
Assessment
1. Upheld
The ASA considered that consumers would interpret "99.99% reliable" to mean that the overall connection of the broadband service had a reliability of 99.99% and, therefore, that the claim referred to customers' complete broadband service. We understood that the evidence provided by TalkTalk to substantiate the claim represented an average of exchanges over a defined period of time, which tested TalkTalk's core network. However, we were concerned that consumers would not be aware of the distinction between a provider's core network and a user's overall internet connection. We considered most consumers would be interested in the reliability of their end-to-end broadband connection up to the point of their router or into their home, rather than the reliability of certain portions of the overall connection, when making a decision to purchase a broadband package with a particular internet service provider. We also noted that there were external factors that would affect overall connection reliability, which we understood TalkTalk would not have control over. Because the evidence did not substantiate the likely interpretation of the claim, we concluded the ad was misleading.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. 3.3 (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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), 3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration).
2. Upheld
While we noted that the ad stated "Switch today", we considered that was not sufficient to inform consumers that the package was only available to new customers. We considered consumers might interpret "Switch today" to mean that they could switch to a different package as a TalkTalk customer and the on-screen text "£30 connection fee may apply" reinforced that impression. Because the ad did not make it clear that the package was only available to new customers, we concluded it was misleading.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. and 3.3 (Misleading advertising).
Action
The ad must not appear in its current form. We told TalkTalk Telecom Ltd to ensure future ads made the basis of network reliability claims sufficiently clear and did not misleadingly imply their packages were available to all customers.
