Ad description
A TV ad and a page on Sky’s website:
a. The TV ad, seen on 17 October 2019, included the voice-over, “Get both Sky and Netflix all in one place on Sky Q and open a world of unmissable entertainment … Sky and Netflix all in one place on Sky Q for one surprisingly low price, just £25 per month”. Prominent on-screen text at the end of the ad included “Sky and Netflix £25 a month Existing and new customers”. Smaller text superimposed at the bottom of the screen during the ad stated “Netflix part of Ultimate On Demand Pack. Upfront costs: £20: new customers; up to £219: existing”, “Requires Sky Q box connected to broadband …”, and “Prices may change during this period. Usually: £34pm. Kit loaned at no cost. Terms apply”.
b. The web page on www.sky.com, seen in November 2019, which was titled “Sky Offers and Bundles”, featured three offers under the text “Open up a world of unmissable entertainment from both Sky and Netflix with Sky Q …”. The first offer, titled “Unmissable entertainment at superfast speeds”, included the text “Sky TV & Netflix … £45 a month for 18 months Prices may change during this period Set-up cost: £39.95”. The second offer, titled “Sky TV and Netflix, all in one place”, included the text “… all on Sky Q £25 a month for 18 months Prices may change during this period Set-up cost: from £20”. The third offer was titled “The TV you love plus exclusive premieres” and included the text “£35 a month for 18 months Prices may change during this period Set-up cost: from £20”. Underneath the information about the offers, small hyperlinked text positioned to the right of the web page stated “Terms & conditions”. Below the offers, under the heading “Here’s the legal bit”, text stated “… Sky TV & Netflix: £39pm outside 18-month minimum term. ‘Sky’s Best Price’ based on lowest price for Sky Entertainment and Ultimate on Demand …Broadband: … Set up: £9.95 router deliver and £10 connection fee. Sky Talk: Compatible line required otherwise £20 connection charge may apply. Standard prices apply after 18 months …”. A number of drop-down sections appeared underneath; the first was headed “Offers”.
Issue
Four complainants challenged whether the ads were misleading because they did not make sufficiently clear that there was a set-up fee of £199 to take advantage of the offers.Response
Sky UK Ltd (Sky) said that new customers and existing customers who had a Sky Q box would be charged a £20 set-up fee. Only existing customers who did not have a Sky Q box would be charged a £219 set-up fee. Sky explained that in ad (a), the upfront fee was explained in the on-screen text which stated “Upfront costs: £20: new customers; up to £219: existing”. They said that the text was sufficiently legible, and consumers would understand that upfront costs applied to those who wanted to take advantage of the offer.
In relation to ad (b), Sky said that the full information on the associated upfront fees was presented in the “Offers” section at the bottom of the page, which contained information about the set-up fees. Sky said that text was also included in the terms and conditions which could be reached by clicking on the words “terms and conditions” in the body text of the ad.
Clearcast, responding in relation to ad (a), said that the superimposed text was of sufficient size and legibility to be clearly read, and was held for long enough to meet requirements. They said the set-up fees involved in taking up Sky services varied according to a customer’s particular status, such as whether they were a new or an existing Sky customer and what equipment they already had. They believed it was difficult for the advertiser to give specific information in the ad about those costs which would be meaningful to all viewers. However, Clearcast considered upfront set-up costs to be material information which needed to be included in the ad.
Clearcast were content that the superimposed text “Upfront costs: £20: new customers, up to £219: existing” was sufficient to alert viewers that there were upfront costs which would have to be paid over and above the advertised monthly price. That wording gave some indication of what those costs were and made viewers aware that the costs would vary. They said that the £199 set-up fee quoted by complainants was lower than the £219 maximum upfront costs flagged up in the superimposed text.
Assessment
Upheld
The ads related to a package which enabled consumers to obtain Sky and Netflix for £25 a month. Customers needed a Sky Q box in order to take advantage of the offer. New Sky customers and existing customers with a Sky Q box would have to pay an upfront cost of £20. Existing Sky customers who did not have a Sky Q box would have to pay an upfront cost of £219.
The ASA considered that viewers would understand from the presentation and claims in ad (a) that consumers would be able to obtain Sky and Netflix for £25 a month, when delivered via a Sky Q box. The voice-over in ad (a) stated “Get both Sky and Netflix all in one place on Sky Q … for one surprisingly low price, just £25 per month”. The large on-screen text at the end of the ad which stated “Sky and Netflix £25 a month Existing and new customers” further emphasised the price claim and the availability of that price to both new and existing customers. We considered that the ad therefore made clear the monthly cost of subscribing to the service for all consumers.
We considered that in addition to the ongoing monthly cost, the set-up fees were also material information that viewers needed in order to make an informed decision about whether or not to take advantage of the offer. Given that the costs which applied to consumers differed depending on their status as a new or existing customer and whether they required a Sky Q box, we considered that this information needed to be clearly presented to viewers in order for them to understand the full costs that were applicable to them. The ad included superimposed text which stated “Netflix part of Ultimate On Demand Pack. Upfront costs: £20: new customers; up to £219: existing” and in a separate shot superimposed text stated “Prices may change during this period. Usually: £34pm. Kit loaned at no cost. Terms apply”. We considered that this presentation of the costs to new and existing customers was unclear and was likely to cause confusion to consumers. In particular the wording used in the first piece of text to describe the costs which applied to each set of customers was unclear and was likely to be misinterpreted by many viewers.
We concluded that because the fees that would be charged to different groups of consumers were not made sufficiently clear, ad (a) was misleading.
In relation to ad (b), the main body of text described three different packages available via Sky Q, which included both Sky and Netflix. In relation to the £25 per month package, text stated “Set-up costs: from £20”. Additional information about the set-up fees was displayed in a drop-down section titled “Offers” at the bottom of the web page. Information about the fees was also included in the terms and conditions, which were one click away via the linked text “Terms & conditions”.
We considered that because the set-up fees constituted material information, they should have been stated in the main text of the ad so that consumers were clear as to the full costs which were applicable to their particular situation. Because the full costs were stated only in a drop-down section or one click away, we considered that they were not sufficiently prominent.
On that basis, we concluded that ad (b) was misleading. 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),
3.10
3.10
Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.18
3.18
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product or service depicted in the advertisement.
(Prices). Ad (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
For advertisements that quote prices for an advertised product or service, material information [for the purposes of rule
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.
includes:
(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.
(Qualification) and
3.17
3.17
Advertisements must not explicitly claim that the advertiser's job or livelihood is in jeopardy if consumers do not buy the advertised product or service.
(Prices).
Action
The ads must not appear again in their current form. We told Sky UK Ltd to ensure that future ads made material information, such as set-up fees, sufficiently clear.
BCAP Code
3.1 3.10 3.18 3.2 3.1 3.3 3.17 3.9
