Ad description
The home page of the Now TV website, www.nowtv.com, seen on 29 March 2024, featured an offer at the top for “ENTERTAINMENT 6 MONTH SAVER Just £9.99 [crossed through] £6.99 a month” followed by details about the plan including the minimum subscription term, the inclusion of free trials for Cinema and Boost and the plans’ cancellation policy. Further “Terms & Conditions” were listed below in a drop-down section, in small text, stating “… Cinema and Boost members only. After your 7-day free trial […] Boost auto-renews at £6 a month, unless cancelled. You can cancel anytime. Ad-free excludes live channels and trailers promoting NOW content. Boost features available on selected content and devices only. See here for more details”. That text hyperlinked to a webpage which included more details of the “Boost” features.
Under the information about the “SAVER” offer on the home page, the Entertainment, Cinema and Sports membership options were presented next to each other under the text “CHOOSE YOUR MEMBERSHIP Pick the experience that’s right for you”. Two bullet points for each plan gave brief information; for example, for the “Entertainment” option it stated “Unmissable dramas and exclusive shows” and “HBO box sets and brand new Sky Originals”. “Choose membership” buttons hyperlinked to relevant webpages with up to three plans on offer for each type of membership.
At the bottom of the home page a “Frequently asked questions” drop-down section included “What do I get with NOW Boost? […] Ad-free: Enjoy an ad-free experience. Ad-free excludes live channels and trailers promoting NOW content”.
Issue
The complainant challenged whether the ad was misleading, as it did not make clear that without the ‘Boost’ upgrade, all NOW TV membership plans included ads.
Response
Sky UK Ltd t/a NOW acknowledged that the ad did not state that the on-demand content available as part of NOW’s membership plans would feature advertising. However, they considered that the presence of ads was not a main characteristic of the service and therefore that it was not material information. They did not view it as a significant limitation or qualification to the claims featured in the ad. Omitting the presence of ads as part of a basic membership plan would not cause an average consumer to make a different transactional decision than they would otherwise have made. It was not likely to mislead consumers in terms of their understanding of the plans or their decision to purchase a NOW TV membership plan.
NOW TV had shown ads for its own content since around 2015, including content requiring consumers to upgrade, and had introduced a basic membership plan that featured advertising before and during streams of individual shows or movies in July 2021. That type of model was commonplace and well established among streaming services available in the UK. They said it was clear on consumer advice websites that ad-free and ad-supported membership plans were common and this appeared to be well understood by consumers. They therefore did not believe it was reasonable for the average consumer simply to assume that a streaming service was ad-free. If it was important to a consumer that a service was ad-free, NOW would expect them to look at the additional information on their website to clarify whether the service contained ads or not.
The average consumer visiting the NOW website would reasonably expect basic membership plans to include ads. In addition, like most other streaming services, NOW offered a premium upgrade option, NOW Boost, which provided additional features that allowed customers to improve their viewing experience at an additional cost. A common feature of such premium upgrades was the ability to go “ad-free” for on-demand content that would otherwise feature ads. They considered that the assertion that the absence of an explicit warning about ads in NOW’s basic membership plans constituted a misleading omission was unreasonable and failed to reflect the prevailing position across UK streaming services.
They added that the information about the NOW Boost upgrade which was accessible via the “How NOW works” link at the top of the nowtv.com landing page made it clear that without upgrading to NOW Boost, a basic membership plan would include ads in on-demand content.
Assessment
Upheld
The CAP Code stated that 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 was information that the consumer needed to make informed decisions in relation to a product; this included the main characteristics of the product.
It was Sky’s view that it was commonplace amongst streaming services that basic membership plans would include advertising, while premium upgrades would be ad-free. The ASA acknowledged that ads were increasingly becoming part of the streaming landscape and that many streaming services had adjusted their pricing models to include ad-supported plans. However, this was not universal, and we considered it to be a relatively new shift (starting in 2021) in the subscription on-demand streaming market, which was traditionally ad-free. We therefore considered that consumers would, at the time the ad was seen in March 2024, expect that free streaming services would include ads, but that consumer expectations for paid services would be mixed. Some may, therefore, expect them to include ads, but many would not expect that to be the case.
We considered that, when choosing a streaming membership plan, the presence of ads would be a key factor for a significant proportion of consumers who prioritised uninterrupted and seamless content-viewing over price. Other consumers would prioritise price over ad-free viewing. Consumers from both groups would therefore view the presence, or not, of ads as a main characteristic of the service. Therefore, we considered that the inclusion of ads with NOW’s basic streaming membership plans was material information that needed to be clearly presented for consumers to make an informed decision about which NOW TV membership plan to purchase.
The NOW TV home page featured a section at the top of the page that promoted the “ENTERTAINMENT 6-MONTH SAVER” plan. Text in the main body of that section included material information about that promotion, including that consumers who purchased an Entertainment plan would also get seven-day trials of Cinema and Boost as well access to streaming TV shows, for £6.99 a month. However, information about the details of the NOW Boost upgrade did not appear in the main body of the text but in the “Terms & conditions” drop-down at the bottom of that section. Among several terms and conditions, the text briefly mentioned the ad-free offering, stating that “Ad-free excludes live channels and trailers promoting NOW content”. However, it did not state that this was one of the Boost features, nor did it make clear that it was not part of the basic Entertainment plan. Further text hyperlinked to a “Boost” webpage where the ad-free offering was clearly listed as one of its features. This information was therefore two clicks away from the main body text.
The next section of the webpage included information about the types of content included in the Entertainment, Cinema, and Sports membership plans, but did not state that those membership plans included ads. Website visitors could click on a membership plan and follow through to complete a purchase without being presented with clear information that those plans included ads unless they subscribed to the Boost upgrade.
Finally, at the bottom of the home page, under the question “What do I get with NOW Boost?” drop-down in the “Frequently asked questions” section, information clearly explained that the Boost upgrade was ad-free.
We noted that neither the home page nor webpages about the different basic membership plans clearly set out that those plans included ads. Additionally, information that clearly set out that the Boost upgrade was the service which enabled ad-free viewing was either two clicks away from the main body text which described membership plans, or one click away and at the bottom of a long webpage. We concluded that the ad omitted the material information that the basic Entertainment, Cinema and Sports plans included ads, and did not make sufficiently clear that to have ad-free viewing, consumers must pay an additional cost for the Boost upgrade.
The ad therefore breached the Code. The ad breached CAP Code (Edition 12) rules 3.1, 3.3, 3.4, 3.4.1 (Misleading advertising), 3.9 and 3.10 (Qualification).
Action
The ad must not appear again in its current form. We told Sky UK Ltd t/a NOW to ensure that future ads did not omit material information, such as the inclusion of ads with basic streaming membership plans.
