Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TV ad and the website www.productsandservices.bt.com, for BT's fibre-optic broadband service, BT Infinity:
a. The TV ad featured a male character using an online dating service on his laptop. Another male character and a female character used tablet devices during the ad.
During the ad the character who used the online dating site said, "She thinks I'm funny but she's not sure about my photo." The female character then searched through pictures on her tablet device and said, "Quick, swap it for this one before she bails." The photo was sent and uploaded instantaneously to the online dating character's laptop.
Later in the ad the online dating character said, "How do I feel about electrophobia?" The second male character replied, "She means the band. Tell her you've got tickets to see them on Friday." The dating character replied, "Have I?" The second male character said, "You do now", and showed him the tablet screen that confirmed the ticket purchase. At the bottom of the screen, text stated "Speeds based on Infinity Option 2 average customer speed and UK ADSL average from Ofcom report Nov 2012".
At the end of the ad, a voice-over said, "Eight times faster fibre optic broadband. Infinity, from BT." On-screen text read "BT Infinity. 8 x faster fibre optic broadband".
b. The website stated "Infinity 2 has arrived ... Up to 8x faster than the UK average". Small print stated "Eight times faster: speeds based on Infinity Option 2 average customer speed and UK average from Ofcom report, Feb 2012".
Issue
1. One complainant challenged whether the claim "Eight times faster fibre optic broadband" in ad (a) and the claim "Up to 8x faster than the UK average" in ad (b) were misleading and could be substantiated, because they did not believe they were based on the most up-to-date Ofcom report.
2. Four complainants challenged whether the speed of the photo transfer and upload and the ticket buying process in the TV ad was misleading and exaggerated the performance of BT Infinity.
Response
1. British Telecommunications plc (BT) said the claims in ad (a) were based on the most up-to-date report available at the time the ad was cleared. They said the latest Ofcom results were subsequently published in March 2013 and the claim was still true according to that report. They said this was because the national ADSL average downstream (download) speed according to the latest Ofcom report was 6 Mbit/s; the previous report figure was 5.9 Mbit/s. BT said their “8x” faster claim could be substantiated because it required a minimum average speed of 48.0 Mbit/s and Ofcom data showed that their Infinity product performed well above that speed, in the range of 60 to 70 Mbit/s.
BT said they would ensure future ads reflected the latest report.
2. BT said they did not believe the ad was misleading because they said it had not shown multiple photos being transferred and it was a straightforward example of how the performance of fibre optic broadband could help an everyday task such as uploading photos, because the speeds were up to 76 Mb, eight times faster than average. They said the ticket buying process was also a straightforward example and the benefit of Infinity meant that the flatmates carried out the tasks with confidence one after the other.
BT said the photo transfer speeds were supported with technical tests which showed it took 4.3 seconds to upload 5 Mb of data. They said the photos shown in the ad were small files, on average between 20 and 80 Kb and based on testing they could be uploaded in approximately 80–110 milliseconds, which was consistent with the average upload speed.
Clearcast said they understood that the latest Ofcom report was from November 2012 and they did not consider the speed of the photo transfer and upload or the ticket buying process was misleading or exaggerated the performance of BT Infinity.
Assessment
1. Upheld
The ASA acknowledged that at the time the ad was cleared BT had used the most up-to-date figure available for ad (a) and their website (b). We noted BT's assertion that their claim was also substantiated by Ofcom's March 2013 report, because the downstream figures had not varied significantly from the previous report.
We noted the on-screen text shown during part of the ad stated the comparison was with BT's Infinity Option 2 and the UK ADSL average, and we acknowledged that BT's service was eight times faster than the ADSL average. We noted the ad ended with larger on-screen text and a voice-over which did not state that the speed comparison was with ADSL. We understood that the March 2013 Ofcom report stated the average download speeds for fixed broadband for all connections was 12.0Mbit/s, which meant BT's Infinity would be less than 8x faster than the overall average speed. We considered that because the ad ended with larger on-screen text, together with a similar voice-over that omitted the comparison with ADSL, the small on-screen text shown during the initial part of the ad was insufficient to clearly qualify the claim. We therefore considered that consumers would be led to believe that the comparison was with all connections.
The website made a similar speed claim and the comparison was not qualified by reference to ADSL.
Because the claims were not based on the most up to date data available at the time the complainant saw the ads, and because the ads did not clearly qualify the comparison, we concluded that ads (a) and (b) were misleading.
On that point ad (a) breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(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.
and
3.11
3.11
Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
. The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
(Qualification) and
3.12
3.12
Advertisements must not mislead by exaggerating the capability or performance of a product or service.
(Exaggeration).
The website (b) breached CAP Code (Edition 12) rules
3.1
3.1
Advertisements 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),
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.
(Qualification) and
3.11
3.11
Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
. The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
(Exaggeration).
2. Upheld
We noted BT's assertion that the photo transfer, upload and ticket buying process was possible due to Infinity's eight times faster average speeds based on technical tests which were not submitted.
We considered whether consumers would understand that the sequences were shortened to accommodate the photo and ticket purchase features during a short ad. We concluded that the features, in conjunction with the eight times faster claim, were likely to lead viewers to believe Infinity operated at or near to the speeds shown. Because we had not seen evidence that it did, we concluded the ad exaggerated the performance of BT Infinity.
Ad (a) breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers 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 consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(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).
Action
The ad must not appear again in its current form. We told BT to base their speed claims on the most up-to-date data and to present qualifications clearly in future.
