Background
THIS ADJUDICATION REPLACES THAT PUBLISHED ON 9 OCTOBER 2013. THE WORDING HAS BEEN CHANGED BUT THE DECISION REMAINS THE SAME.
Summary of Council decision:
Four issues were investigated, of which two were Upheld and two were Not upheld.
The ASA noted the term "superfast" had come into common usage in relation to fixed-line broadband following the introduction of new technologies such as fibre-optic broadband and that it was used to distinguish itself from those speeds previously achieved by ADSL. Therefore, whilst consumers may not generally have been aware of any specific speed which defined "superfast" on fixed line, we considered they would understand "superfast" to relate to fibre-optic outperforming standard ADSL and would expect it to have an industry defined minimum speed. We noted Ofcom had defined 'superfast' as both greater than 24 Mbit/s and, later, 30 Mbit/s and that a 2012 Ofcom report on the performance of fixed-line broadband specifically stated that "superfast" was used in reference to speeds in excess of 30 Mbps and that this was consistent with the EU's digital Agenda scorecard definitions which defined "fast" fixed line broadband as being greater than 30 Mbit/s. A later 2013 Ofcom research document on the European Broadband Scorecard stated 'standard' broadband comprised technologies capable of providing speeds over 144 bit/s and less than 30 Mbit/s and that 'superfast' comprised technologies capable of providing speeds equal to or greater than 30 Mbit/s.
Ad description
A direct mailing, from Sky, included a letter and a booklet. Text on the envelope stated "Let's give Virgin Media a call and see what happens". The booklet was presented in the style of a conversation between a customer and Virgin Media's customer services. Text in the booklet stated "So this super-duper fast broadband I've got is always going to stay that way, right?" The response stated "Well that depends. We do have a traffic management policy."
Text on the next page of the booklet, stated "At Sky, when we say our broadband usage is unlimited, that's exactly what we mean ... So whether you're into The Smiths back catalogue, Spiderman movies or your friend's holiday snapshots - you can download whatever you want without worrying about usage limits. Ever".
The conversation continued "Do all your movies and sports channels come in HD? I Like my stars to shine." The response stated "Not exactly. But we do have a couple of sports stars in our ads." That page was accompanied by an image of the golfer Rory McIlroy. Text on the next page of the booklet stated "We've also got more HD channels than anyone else Even if you don't have a head for numbers, it's easy to see that we've got the most HD channels around ... So all your stars can shine bright, not just some of them."
The conversation then stated "I've just bought an amazing new 3D TV. Can't wait to try out the dedicated 3D channel." The response stated "Sorry, we don't have one of those." That page was accompanied by an image taken from Galapagos 3D with David Attenborough.
Issue
Virgin Media Ltd (Virgin Media) challenged whether:
1. the ad misleadingly exaggerated the effect of Virgin Media's traffic management policy on its broadband customers;
2. the ad misleadingly implied that the majority of the sports and movie channels provided by Virgin Media were not available in HD;
3. the ad misleadingly implied Virgin Media customers were unable to watch live 3D programming, which was untrue; and
4. the ad was denigrating to the Virgin Media brand by presenting an overly negative portrayal of the service its customers received.
Response
1. British Sky Broadcasting Ltd (Sky) said Virgin Media customers may experience less than super-fast speeds because of the effect of Virgin Media's traffic management policy. Customers who exceeded their data threshold would be subject to a speed reduction of 50% for a minimum period of 60 minutes and for as long as they continued to exceed their data threshold.
2. Sky said, at the time the ad appeared, they offered Sky Sports 3, Sky Sports 4, Sky Sports F1, Sky Sports News or Sky Movies Classics in HD. They said Virgin Media did not. They said the ad did not state or imply that the majority of Virgin Media's channels were not available in HD.
3. Sky believed the ad made clear that they offered a dedicated live 3D channel, which Virgin Media did not. They pointed out that the Virgin Media website made clear that they offered live events in 3D when they were made available by broadcasters.
4. Sky said the ad pointed out the objective competitive advantages of their service compared to Virgin Media's service. They said the ad did not state or imply that Virgin Media's service was bad or unsatisfactory, nor that Virgin Media adopted any unfair, dishonest or duplicitous practices.
Assessment
1. Upheld
The ASA acknowledged Virgin Media's comments that their traffic management policy affected only a small percentage of their customers and that Virgin Media did not reduce the speed of the service customers on their 60 Mb and 100 Mb services received to below 30 Mb ‒ the speed at which broadband was described as superfast.
We noted the page beside that which included an image of a scene from Boardwalk Empire, made clear that Sky did not implement a traffic management policy. Notwithstanding that, we considered consumers would understand the question "So this super-duper fast broadband I've got is always going to stay that way, right?" and the response "Well that depends. We do have a traffic management policy" to mean that customers receiving Virgin Media's superfast services, namely those with speeds above 30 Mb, were likely to have the speed of their service reduced to below 30 Mb as a result of Virgin Media's traffic management policy.
Because we understood Virgin Media's traffic management policy affected only a small percentage of their customers and did not reduce the speed of the service customers on their 60 Mb and 100 Mb services received to below 30Mb, we considered the ad misleadingly exaggerated the effect of Virgin Media's traffic management policy on its broadband customers.
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 3.33 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).
2. Not upheld
Beside the page that included a photograph of Rory McIlroy was text that stated "We've also got more HD channels than anyone else" and "So all your stars can shine bright, not just some of them". In that context, we considered consumers would understand the question "Do all your movies and sports channels come in HD?" and the response "Not exactly" to mean that not all of Virgin Media's sports and movie channels were available in HD and that Sky offered more channels in HD than their competitors. However, we did not consider the ad implied that the majority of the sports and movie channels provided by Virgin Media were not available in HD. On that basis, we concluded that the ad did not breach the Code on this 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. (Misleading advertising) 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) but did not find it in breach.
3. Not upheld
Beside the page that included a photograph from Galapagos 3D was text that stated "Only Sky brings you a live 3D channel". In that context, we considered consumers would understand the proposition "Can't wait to try out the dedicated 3D channel" and the response "Sorry, we don't have one of those" to mean that the Virgin Media service did not include a channel dedicated to live 3D programming. We did not consider the ad implied Virgin Media customers were unable to watch live 3D programming. On that basis, we concluded that the ad did not breach the Code on this 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. (Misleading advertising) 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) but did not find it in breach.
4. Upheld
As identified in point 1, above, we concluded that the ad exaggerated the effect of Virgin Media's traffic management policy. Furthermore, we considered the ad was presented in a manner that went beyond a robust and objective comparison of the services offered by Sky and Virgin Media and denigrated Virgin Media's brand. We therefore concluded that the ad breached the Code on this point.
On this point, the ad breached CAP Code (Edition 12) rule 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Comparisons).
Action
The ad must not appear again in its current form. We told Sky not to misleadingly exaggerate the effect of competitors' services in future. We also told Sky not to denigrate Virgin Media's brand in future.
