Background
Summary of Council decision:
Two issues were investigated both of which were Upheld.
Ad description
Claims on the broadband section of the Virgin Media website, www.virginmedia.com, stated "The faster your broadband speed, the more you'll be able to do online. So, if there are a few of you at home gaming, downloading, streaming movies and shopping, then mega speeds of up to 100Mb will let you all do your thing without slowing each other down. If you're going to do a bit less than that, but still want consistently fast broadband even at peak times, then you'll be fine with our up to 30Mb or up to 60Mb tariffs ... You get all this with your package too ... Our fastest wireless ... Free internet security ... Unlimited downloads Download and browse as much as you like with no caps and no hidden charges".
Issue
1. British Sky Broadcasting (Sky) and British Telecommunications plc (BT) challenged whether the "unlimited" claim was misleading, because they believed that Virgin Media's traffic management policy had a more than moderate impact on those customers who exceeded data thresholds.
2. Sky and one member of the public challenged whether the claim "Unlimited downloads Download and browse as much as you like with no caps and no hidden charges" misleadingly implied that there were no provider-imposed restrictions on a customer's ability to download data.
Response
1. Virgin Media Ltd (Virgin Media) said, when read in its entirety, the claim "Unlimited downloads Download and browse as much as you like with no caps and no hidden charges" clearly set out what could be expected of the service. They believed that the average consumer's expectation of their "unlimited" service was that they could download as much as they liked, without incurring an additional charge or having their service suspended if they exceeded any usage threshold.
They believed that the reference to "unlimited" should be assessed in the context of the entire claim, which made clear that what was "unlimited" was the download element of the service and that there was no threshold over which a customer would be charged or suspended. They said only a very small proportion of customers were impacted by traffic management and were therefore, by definition, not average. They said because 97.7% of their customers would not be affected, the average consumer's expectation of the "unlimited" service would therefore be met.
They submitted a table of traffic management capture rates which set out the percentage of traffic managed customers on a daily basis for the 30 Mb, 60 Mb and 100 Mb packages, and figures for each for both the average daily download amount for all UK customers and the minimum daily download amount to enter traffic management. They said, even under traffic management customers would, on average, experience speeds of 15.5 Mb, 27.95 Mb and 44.15 Mb across the three advertised tiers, based on the 24-hour average download speed as reported in Ofcom's report on UK broadband speeds published in August 2012. The speeds experienced would therefore still remain significantly above the UK average broadband speed, and still allow the full range of activities an average consumer would expect. By example, they said users on their 30 Mb package could download more than 1000 music tracks before they were traffic managed.
2. They said Ofcom's Communications Infrastructure report, published in November 2011, found that residential fixed broadband customers used 17 GB of data per month on average, with usage varying between 10 GB and 40 GB per month. They said, in light of this, they did not believe that the ability of a Virgin Media customer to theoretically download a minimum of 269 GB of data per day on the entry level 30 Mb service was contrary to the average consumer's expectation of a service described as having no caps, in relation to the amount they could download. They said, to the extent that a traffic management policy applied, the impact was moderate and clearly set out at the foot of the ad.
Assessment
1. Upheld
The ASA understood that the claim "Unlimited downloads Download and browse as much as you like with no caps and no hidden charges" was intended to communicate that there were no restrictions on a user's ability to download data, in terms of charges or suspension of service. However, we considered that "unlimited" was a strong claim about the characteristics of the product and that consumers were likely to expect that services, or features of services, described as "unlimited" were subject only to moderate restrictions.
We also understood that only a small proportion of customers had their speeds reduced as a result of exceeding the data thresholds and, even during periods of traffic management, were able to continue web browsing as normal and downloading at a reduced rate. Virgin Media believed that the policy was moderate because it only affected between 1.7% and 2.3% of their users. However, we considered that the average consumer would not expect a service described as "unlimited" to reduce user's speeds by 50% if they exceeded certain data thresholds, regardless of whether a particular individual user would be affected.
We noted the high speed nature of Virgin Media's service and the emphasis of the ad on the performance and potential maximum speed and considered that the advertised service was likely to appeal to, amongst others, those consumers who wished to carry out bandwidth intensive activities, such as linking multiple devices to their connection. In that context we considered that the restriction of reducing users' download speeds by 50% was not moderate and that any reference to it was likely to contradict, rather than clarify, the claims that the service was "unlimited". We therefore concluded that the claim "unlimited" was misleading.
On this 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).
2. Upheld
While the claim "no hidden charges" made clear that users would not be charged for downloading or browsing, we considered that the inclusion of the claims "unlimited" and "no caps" implied that there were no other restrictions to the service, regardless of how much data users downloaded and browsed. Virgin Media's traffic management policy reduced users' download speeds by 50% if they exceeded certain data thresholds and we considered that this was an immoderate restriction to the advertised "unlimited" service. We therefore concluded that the claim "Unlimited downloads Download and browse as much as you like with no caps and no hidden charges" misleadingly implied that there were no provider-imposed restrictions on a customer's ability to download data.
On this 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).
Action
The ad must not appear again in its current form. We told Virgin Media not to claim that their service was "unlimited" and with "no caps" if they imposed restrictions that were more than moderate.
