Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two ads for Sky, seen in February 2022:
a. A page on Sky’s own website, https://www.sky.com/broadband, included text that stated, “UK’s Top Performing Major Provider. Sky is the top performing major broadband provider – Ofcom complaints data Q3 2021”. Above the text was a purple circle with the wording, “TOP-PERFORMING MAJOR BROADBAND PROVIDER”. In the middle of the circle was an image of five stars in a row.
At the bottom of the page there was text that stated, “Here’s the legal bit” with a drop-down menu. Text within it stated, “Top performing Major Provider: Based on the UK’s top 4 broadband providers (by market share as estimated independently by Enders December 2021 covering up to 30th September 2021 – BT, Sky, Virgin, Talktalk make up to 75.3% of market share) number of complaints 100,000 customers. Sky received the fewest complaints measured by Ofcom for fixed broadband only (excludes landline) in its latest Telecoms and Pay TV Complaints Report (published 8 February 2022)”.
b. An email from Sky, received in February 2022, stated, “*UK’s Top Performing Major Provider. Sky is the top performing major broadband provider – Ofcom complaints data Q2 2021”. Above the text was a purple circle with the wording, “TOP-PERFORMING MAJOR BROADBAND PROVIDER”. In the middle of the circle was an image of five stars in a row.
At the bottom of the page there was text that stated, “Top performing Major Provider: Based on the UK’s top 4 broadband providers (by market share as estimated independently by Enders December 2021 covering up to 30th September 2021 – BT, Sky, Virgin, Talktalk make up to 75.3% of market share) number of complaints 100,000 customers. Sky received the fewest complaints measured by Ofcom for fixed broadband only (excludes landline) in its latest Telecoms and Pay TV Complaints Report (published 16 November 2021)”.
Issue
1. BT, who believed that EE were the top-performing major provider in Ofcom’s Complaints data, challenged whether the ads were misleading.
2. BT, who believed that the ad implied that Sky had been given an award by Ofcom, challenged whether the ads were misleading.
Response
1. Sky UK Ltd stated that they had clearly qualified the claim “Top-performing Major Provider” by explicitly stating that it was based on the UK’s top four broadband providers by market share as estimated by Enders December 2021. They named the providers as BT, Sky, Virgin and TalkTalk and stated that they made up 75.3% of the market share. They were clear that out of those four broadband providers, Sky received the fewest complaints per 100,000 customers. Consumers were also able to check the Ofcom report and see Sky’s complaints data and so they believed the presentation was not misleading because it was in line with the Ofcom report and the basis was clearly set out in the ad.
Sky said that they should be free to define “major provider” within reasonable bounds and it was not for the ASA to define this. Their approach of using market share data was a sensible approach to defining “major provider”.
2. Sky said that the graphic was an illustration of the claim “Top-Performing Major Broadband Provider” using the Sky colour spectrum branding and an image of five stars. They said the claim accompanying the graphic was clearly qualified and stated Sky was the top performing major broadband provider in the Ofcom complaints data. The qualifying claim therefore did not state or imply that Sky had won an award as it explicitly referred to their rating in the Ofcom report. In addition, the graphic did not use Ofcom’s logo or anything similar to it. On that basis they said consumers would not have been misled to believe that Sky had won an award from Ofcom.
Assessment
1. Upheld
The ASA understood that Sky had based the term “major provider” on the UK’s top four broadband providers by market share, as defined by Enders December 2021, which were BT, Sky, Virgin and TalkTalk. We noted that for fixed broadband complaints EE had the lowest number of complaints in the “Ofcom complaints data” for quarters two and three in 2021 and Sky were second in both quarters. However, by Sky’s definition EE were not a “major provider” and therefore when viewed in that way Sky were the top performing provider in the Ofcom complaints data two and three in 2021.
We understood that there was no accepted definition of a “major provider” in the broadband market. We considered that despite their lower market share, EE provided services to a large number of customers and had a significant advertising presence. In light of that, we considered they would form part of the group of providers that consumers would readily identify as the leading names in the industry.
Because Sky had chosen to define “major provider” in a specific way that consumers would need further information to understand their meaning, we considered the qualification explaining the definition should have been suitably prominent. The qualification in ad (a) was located within a drop-down menu at the bottom of the page entitled “Here’s the legal bit”. For ad (b) it was located at the bottom of the email. However, on the website there were no symbols next to the claim to indicate that it was qualified or information to direct people to the footnote text. While the email did have an asterisk before the claim, there was no corresponding symbol at the bottom of the page to link it to the terms and conditions. In addition, for both ads there was a large amount of text in the footnote and only a limited amount related to the disputed claims.
Because the claim was not prominently qualified in both ads, which would have been necessary for consumers to understand the meaning of the claim “major provider”, and because in the absence of clear qualification consumers would consider EE a major provider, we concluded that the ads were misleading.Ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (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. and 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 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors).
2. Upheld
The ASA noted that the disputed images in ads (a) and (b) contained text that stated, “TOP PERFORMING MAJOR BROADBAND PROVIDER” which was consistent with an award title. Similarly, the displayed five stars was also familiar imagery found in awards.While the qualifying text did not explicitly state Sky had won an award, the reiteration of the wording, “top performing major broadband provider”, and the attribution of this to Ofcom complaints data, reinforced the impression that an award had been given and directly linked that accolade to Ofcom’s complaints data reports.
The ASA further noted that the image had been placed next to another graphic of an actual award for the “Best Triple Play Provider” from the 2020 Uswitch awards in ad (a). That had text underneath it which stated, “Our award-winning package is unbelievable for unlimited streaming”. The depiction of the adjacent award and the text mirrored that of the disputed image and the overall presentation reinforced the impression that Sky had won an award for being a top performing broadband provider within Ofcom’s report.
Because ads (a) and (b) implied that Sky had received an award from Ofcom when that was not the case, we concluded that both ads were misleading and breached the Code.Ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading Advertising).
Action
We told Sky UK Ltd to ensure future ads prominently qualified significant limitations, and did not mislead consumers by falsely claiming or implying they had won an award.
