Background
Summary of Council decision:
Three issues were investigated. One was Upheld, one was Not upheld, and the other was informally resolved after the advertiser agreed to withdraw their advertising.
Ad description
A poster for BT broadband services, seen in Bristol on 20 January 2020, stated, “Bristol. Don’t settle for Virgin”. Text underneath in smaller writing stated, “Get Ultrafast Full Fibre with more reliable speeds than Virgin M200 and M350. See if it’s available for your home at BT.com/Bristol or visit us instore”. Small print stated “We’re rolling out speeds of 300Mbps in Bristol. Check availability at BT.com/Bristol. To verify “more reliable” e-mail [email protected]”.
Issue
Virgin Media Ltd challenged whether:
1. the claim “more reliable speeds than Virgin M200 and M350” was misleading and could be substantiated; and
2. the ad misleadingly omitted information on which of BT’s services were being compared against those of Virgin Media.
Response
1. British Telecommunications plc t/a BT said that “full fibre” was the term most commonly used to describe fibre-to-the-premises (FTTP) broadband. They said that, with their Ultrafast Full Fibre service, which at the time included the products Fibre 100 and Fibre 250, customers received the speed they paid for more of the time than if they used the Virgin M200 and M350 services. They highlighted an Ofcom report (UK Home Broadband Performance report) which showed that the minimum speeds as a proportion of their maximum speeds was higher on BT’s Fibre 100 (average speed 145 Mbps) and Fibre 250 (average speed 300 Mbps) products than on Virgin’s M200 and M350 products.
BT noted Virgin’s concern that CAP’s speed guidance stated that to make a claim about median speeds in a particular area, they might have to produce evidence collected from that local area. However, they pointed out that the guidance related to numerical speed claims rather than reliability claims. They argued that where the guidance referred to local data, it was concerned with preventing national averages being used in ads targeted at customers in areas that were known to have slower broadband, such as rural areas. Conversely, in the current case, BT were informing customers that they now had access to superior broadband than the rest of the country and that one of its biggest advantages was consistency of speed.
2. BT noted the ASA had previously acknowledged that FTTP services could differentiate themselves from part-fibre services by describing the products as “full fibre” and by making performance claims that highlighted the superiority of the technology. BT said that because full fibre was recognised as superior to cable broadband, and because the two Ultrafast Full Fibre services BT offered at the time performed better in relation to variation of speed than the two named Virgin products, it was not necessary for the ad to identify any specific BT products. They also pointed out that the ad was a large poster, and that clearly visible text at the bottom of the ad indicated the download speed available with BT Ultrafast Full Fibre by stating “We’re rolling out speeds of 300Mbps in Bristol”.
BT said the ad clearly stated which Virgin products were being compared to BT’s Ultrafast Full Fibre products. They said it was not relevant that Virgin offered a faster product than the products BT were comparing against. They said the claim was about reliability of speeds rather than download speed. Consumers had a choice of headline download speed, but they did not have a choice over how reliable and consistent their speed was.
Assessment
1. Upheld
The ASA considered that consumers in Bristol were likely to interpret the claim “Bristol. Don’t settle for Virgin. Get Ultrafast Full Fibre with more reliable speeds than Virgin M200 and M350” to mean that they would receive speeds which varied less with BT’s Ultrafast Full Fibre products than Virgin’s M200 and M350 products. We noted that the ad stated in the small print that BT were “rolling out speeds of 300 Mbps”, and we considered that consumers would interpret the claim to refer to a BT service which achieved that average speed. A recent Ofcom report displayed different providers’ minimum speeds as a proportion of their maximum speeds on a range of different broadband products, on a national level. The report showed that each of BT’s full fibre services (67 Mb/s, 145 Mb/s and 300 Mb/s) were higher than both Virgin’s M200 and M350 service. We therefore considered the evidence showed that BT’s 300Mbps full fibre service had more reliable speeds than the Virgin’s M200 and M350 services nationally.
Virgin contended that describing speeds as ‘more reliable’ suggested consumers would receive better speeds with BT for at least some portion of the day. However, we disagreed, and considered the claim related to consistency of speed, rather than the actual relative speeds of the services. We understood Virgin were concerned that BT had not provided localised evidence to show that Bristol consumers specifically would receive more reliable speeds than Virgin given that the ad was addressed to those in Bristol.
Virgin highlighted that CAP Guidance on speed claims stated that the selection of areas tested should be representative of the target audience and a campaign targeted at a specific area might use data from tests carried out in that area. However, we considered that the guidance on speed claims, which was written with part-fibre and ADSL services in mind, was not applicable to claims about a full fibre service’s reliability. We understood that, like full fibre, the speed of cable services did not depend on distance from the local exchange or the nearest street cabinet, as was the case with other forms of part-fibre and ADSL services. A Connected Nations Ofcom report also summarised that increased capacity of full fibre services meant that they provided consistent speeds that would not depend on congestion at peak times due to other users, which was not the case for part fibre (which included cable) and ASDL services. Nevertheless, we considered that, because the claim was a localised one, referring specifically to Bristol, and the ad did not make clear that the claim was based on national data, BT would need to demonstrate that the report’s findings could be applied on a local level in order to support the claim.
We consulted Ofcom, who explained that the UK Home Broadband Performance report indicated that, in general terms, cable services varied more in terms of speed and other performance metrics than other broadband networks, including full fibre services, at a national level. However, because in some localised circumstances it was possible for cable services to perform comparably to full fibre services, they did not consider it appropriate to extrapolate from the report’s findings that the cable services available to a particular local geographical area or group of users would display greater variability than full fibre services. We therefore considered that the ad should have made clear that the claim was made on the basis of national data, in order to avoid misleading consumers. We therefore concluded that the ad was misleading.
On that 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. Not upheld
The ASA acknowledged the claim “Get Ultrafast Full Fibre with more reliable speeds than Virgin M200 and M350” was principally about reliability of speeds rather than the actual speeds themselves. However, we nevertheless considered that, in the absence of information to indicate otherwise, consumers would understand from the claim that BT’s Ultrafast Full Fibre products had comparable speeds to Virgin’s M200 and M350. We noted that the ad stated that BT were “rolling out speeds of 300 Mbps”, and we considered that consumers would understand that the ad was comparing BT’s 300 Mbps service to Virgin’s services, which from their names would be taken to have average speeds of 200 Mbps and 350 Mbps. We noted that BT also had full fibre services which had lower average speeds, but since only the 300 Mbps speed was mentioned in the ad, that would be taken as the comparator service.
We considered that the average speed of BT’s service was clear, and noted that 300 Mbps fell within the range of the Virgin services stated in the ad. We considered that speed was comparable to those of Virgin’s services in the context of the ad. We therefore concluded that the ad was unlikely to mislead through the omission of the name of the BT service being compared.
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.
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
3.33
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), but did not find it in breach.
Action
The ad must not appear again in its current form. We told British Telecommunications plc to ensure that for claims about the reliability of full fibre broadband, when their ads addressed a localised audience, they did not mislead by omitting the fact that claims related to data on a national level.
