Background
This Ruling forms part of a wider piece of work on online choice architecture, identified for investigation following complaints received and intelligence gathered by the ASA.
Ad description
A website for NOW TV, www.nowtv.com, a subscription streaming service, seen in December 2023, showed the different membership options for purchasing an entertainment subscription.
The membership selection page featured the sub-heading “ENTERTAINMENT MEMBERSHIP” and a clickable button labelled “Choose your membership”.
Upon clicking that button, consumers were taken to a page showing two subscription options labelled “6 Month Saver” and “Fully Flexible”. Text in a bullet list in the “6 Month Saver” subscription stated “Watch in Full HD on 3 devices at once with 1 month free Boost”. Small text stated “New Boost members only. After your 1 month free trial Boost auto-renews at £6 a month unless cancelled”. Text in the “Fully Flexible” subscription stated “Included: 7 day free trial of Cinema and Boost – cancel anytime”. Small text stated “After your 7 day free trials, membership auto-renew monthly at £9.99 for Cinema and £6 for Boost. Cancel anytime”.
Issue
The ASA, who understood that free trials were automatically added to the basket and would auto-renew at a monthly charge unless cancelled, challenged whether the presentation of the options was misleading.
Response
Sky UK Ltd t/a NOW believed that the presentation of the ad was clear to consumers. They detailed that when a consumer landed on the membership selection page they were presented with the available memberships, such as ‘Entertainment’ or ‘Cinema’. They highlighted that consumers were invited to select their preferred membership with the button “Choose your membership”. As such, they believed that the average consumer would understand that there was an element of choice because of the word “choose”, and that they would subsequently be presented with further options. They re-iterated that the average consumer would know that their selection at that point in time was not final.
They said that when a consumer proceeded to the next page, they were presented with all available options for the Entertainment membership, namely the “Entertainment and Cinema 6 Month Saver” and the “Entertainment Fully Flexible” membership. They explained it was at that stage in the customer journey, that the consumer was first made aware of all the entertainment membership options available to them and that the “Entertainment Fully Flexible” membership came with a 7-day free trial of “Cinema” and “Boost”. They believed that the concept of a 7-day free trial was widely understood and, therefore, the inclusion of the free trials was not misleading.
They also stated that the webpage prominently included all significant conditions relevant to the 7-day free trials. They re-iterated that information was clear, legible and immediately visible. Therefore, a consumer who selected the membership option would be fully informed that they were also adding the Cinema and Boost free trials to their basket and that they would auto-renew for a fee after the free trials ended. As such, they believed a consumer could not have been misled at the point they added the membership to their basket, because by continuing in the consumer journey, they believed that a consumer indicated their intention to proceed on the basis of receiving the free trials. They believed that the presentation of the options was sufficiently clear and was not likely to mislead consumers into making a transactional decision they would not have otherwise made.
NOW also said that, as result of receiving notification of the complaint, they would be carrying out user experience testing on their online customer journeys, specifically in relation to the concerns raised by the complainant. They intended to use those results to make improvements to the customer experience. They also provided several examples of amended text within the ad in response to the complaint.
Assessment
Upheld
The CAP Code stated that marketing communications referring to promotions must communicate all significant conditions where the omission of such conditions is likely to mislead. CAP guidance on ‘The advertising of free trials or other promotional offer subscription models’ stated that ads must make clear whether a paid subscription started automatically after the trial unless cancelled, and the extent of any financial commitment if the subscription was not cancelled during the trial. The guidance further stated such information must: be immediately visible and prominent; immediately follow the most prominent references to the trial or offer; and be clear and legible both in size and clarity of font.
The “Choose your membership” webpage contained two boxes outlining the respective benefits of the “Entertainment” and “Cinema” membership; however, the ASA noted that text did not refer to the inclusion of the free trials. We therefore considered consumers would proceed with selecting their preferred membership, “Cinema” or “Entertainment”, and would be unaware of any free trials that might be included as part of the packages.
Consumers who chose “Entertainment” were taken to a second webpage which detailed two different subscription options “Entertainment & Cinema” and “Entertainment” and the terms and benefits of each. Text within the box detailing the “Entertainment & Cinema” package stated “Watch in Full HD on 3 devices at once with 1 month free Boost” and text within the box for the “Entertainment” subscription stated that it “included: 7 day free trial of Cinema and Boost – cancel anytime”. We therefore considered, at that stage of the consumer journey, consumers would understand that the Entertainment package contained free trials. However, we considered that it was not clear from the text “1 month free Boost” that the Entertainment and Cinema package was even a trial or what features it included. We also noted that, whilst the text stated the length of the free trials, it did not make clear whether a subscription would start automatically after the trial period ended, and if so, the extent of the financial commitment if they were not cancelled in the trial period. Furthermore, we considered that the text “cancel anytime”, which was stated in relation to the 7-day free trial of Cinema and Boost, would be interpreted, in the absence of further prominent information, to mean that the trial could be cancelled if the consumer wanted, but that in any case they would not be subject to any obligations thereafter.
However, we understood that each free trial would auto-renew at a monthly charge, specifically £6 for “Boost” and £9.99 for “Cinema”, unless they were cancelled within the free trial period. We acknowledged that those significant conditions were stated at the bottom of the two boxes detailing each of the streaming packages. When compared, however, to the other text presented in the box, we considered this information was in a smaller font and a less prominent colour. Furthermore, we noted that the text was positioned at the bottom of the boxes, underneath the buttons to select and purchase the consumer’s desired streaming package. We considered that, because the text was placed away from the references to the free trials and below the button to proceed in the consumer journey, consumers were more likely to overlook the significant conditions of the trials. We considered the presentation of such text made it significantly less prominent to consumers and increased the likelihood that consumers would miss that information.
Because the text outlining the significant conditions of the free trials was not clear in either size or clarity of font and did not immediately follow the reference to the free trials, we concluded that the ad was misleading
.The ad breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), and 3.9 and 3.10 (Qualification).
Action
The ad must not appear in its current form. We told Sky UK Ltd t/a Now TV to ensure that their ads made sufficiently clear that free trials would automatically auto-renew at a fee.
