Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
A TV, press ad and website promoted a broadband supplier:
a. A TV ad featured Usain Bolt dressed as different members of a family using various devices (tablet, laptop, games console). The voice-over stated, "This is no ordinary household. It's a Virgin Media household. And because the Bolt family are doing more on the internet than ever before, we're supercharging our fibre optic network again. Giving them even more power." The voice-over also stated "We're committed to keeping our fibre optic network supercharged because we always want you to have the power you need ... you'll be able to download five times faster than BT's regular broadband, now from just £7.50 a month for the first six months. Search 'supercharge your broadband' today." The ad showed Sir Richard Branson again watching the computer-generated screen, which stated "5x FASTER".
On-screen text throughout the ad stated "Cabled areas only. Subject to survey. Minimum 18 month term and T&Cs apply. Rolling out to existing customers throughout 2014 & early 2015 ... Virgin Media peak average speed 48.8Mb SamKnows survey Feb 2014. BT ADSL2+ peak average speed of 9.56Mb OFCOM report Aug 2013. For verification go to virginmedia.com/ourspeeds. £7.50 for 6 months, £15.50 thereafter. Virgin phone line £15.99/month. New customers. £49.95 installation fee applies. DD/ebill price. Details at virginmedia.com".
b. One press ad was headlined "Our new supercharged network will let you download 5x faster than Sky and BT's regular broadband".
c. A second press ad stated "Download 5x faster than Sky and BT's regular broadband". The small print stated "Service available in Virgin Media areas only. ADSL2+ peak average speed of 9.56Mb (BT) and 8.9Mb (Sky). Ofcom's review of UK Broadband speeds published in August 2013, based on Ofcom May 2013 tests. Virgin Media peak average speed of 48.8Mb ...".
d. Claims on www.virginmedia.com stated "We've supercharged your broadband yet again" and featured a graph entitled "How we compare ... Our superfast broadband just got even faster (bad news Sky and BT)". The graph showed Sky and BT's broadband speeds compared with three of Virgin Media's speeds; 'Up to 50Mb', 'Up to 100Mb' and 'Up to 152Mb'. Each column displayed an icon which stated "We're now 5x faster!" "We're now 9x faster!" and "We're now 12x faster!" retrospectively. Underneath it stated "Our average speeds compared to Sky and BT's regular broadband". The sections entitled "Speeds explained" and "Proven by Ofcom" also included a comparison table which compared average download speeds offered by some of the main broadband suppliers.
Issue
BT's challenges were raised in relation to the TV ad and Sky challenges were raised in relation to the press ads and website.
1. BT challenged whether the comparison "you'll be able to download five times faster than BT's regular broadband" was verifiable, because they did not believe that the web page referenced in ad (a), "virginmedia.com/ourspeeds", provided sufficient information for viewers to verify the comparison.
2. Sky challenged whether the claim "Sky and BT's regular broadband" was misleading, because they believed it would be understood to mean broadband services which were regularly available and therefore implied that the comparison included Sky’s and BT's superfast fibre services.
3. BT and Sky challenged whether the claims that consumers would be able to "download 5x faster than Sky and BT's regular broadband" were misleading and could be substantiated, because they considered it was an absolute claim which implied that all Virgin Media customers would always be able to "download 5x faster" than Sky’s and BT's broadband customers, which they understood was not the case, because the claim was based on average speeds.
Response
1. Virgin Media Ltd said the web page referred to in the ad included a tab that set out data on the average speeds for their services at peak times and over 24 hours, and explained how that data was obtained. Another tab provided data that related to Virgin's competitors, which was from Ofcom's review of UK broadband speeds in November 2013. The ads were based on the most up-to-date data available at the time they appeared. They considered the web page, which viewers were directed to by the ad, provided enough information about the comparison to allow consumers to understand it and believed that also providing extensive statistics would not assist that understanding.
Clearcast said they had requested that Virgin create a web page that would allow viewers to verify the comparison and that they referred to that in the ad, via on-screen text. They considered the web page was clear and provided all of the necessary information to allow viewers to verify the comparisons made. It explained at what time of day the tests were conducted and although it did not specify the location of the testing, that was not relevant because they understood location did not affect speeds.
2. Virgin considered "regular broadband" would be interpreted to mean the broadband that the majority of Sky, BT and other broadband consumers had. They said the latest information available from Ofcom stated that 75% of residential broadband customers had ADSL services. It was usual for other providers to make a distinction between their different products based on speed and they considered consumers would not be misled by the claim "regular broadband".
3. Virgin believed the claim "download 5x faster than Sky and BT's regular broadband" would not be understood to be an absolute claim that consumers would always achieve that speed difference, particularly given the context in which the claim appeared and that the small print made clear the circumstances in which they would be able to download five times faster. They said the claim was based on a comparison of peak time speeds for which Virgin's up to 50 Mb service was more than five times faster, and it remained so when compared to Sky’s and BT's 24-hour averages. They said their up to 100 Mb and 125 Mb services were respectively nine and 12 times faster than Sky and BT. The claim "download 5x faster than Sky and BT's regular broadband" was based on the slowest speeds consumers were likely to experience at peak times on their slowest broadband tier, and Virgin believed the comparisons remained valid even when made against Sky’s and BT's faster services. They provided data to support those claims, based on speeds at the time the ads appeared. Virgin accepted there might be occasions on which consumers would not receive five times the speed of the services being compared. However, they believed it was clear from small print included in all of the ads that the claim was based on the average speeds of the relevant services. They believed that, and the context in which the challenged claim appeared, made clear that it was not an absolute statement.
In relation to ad (a), Clearcast believed that when viewed in the context of the ad, which included suitable qualifying text to explain its basis, the claim would not be viewed as absolute.
Assessment
1. Upheld
We noted ad (a) included the on-screen text "For verification go to virginmedia.com/ourspeeds", which we considered made clear how viewers could verify the comparison. We noted the relevant web page made available the average speeds at peak times and over 24 hours for each 'tier' of Virgin's broadband as well as, in a drop down box, brief details of how the data was obtained. Separately, it included Virgin's competitors' average download speeds, also at peak times and over 24 hours, and details of the Ofcom report that data was from. We understood the Ofcom report was publicly available online. However, no further detail was provided about the nature and the methodology of the tests on Virgin's own network or of the data behind their headline average speeds (for example, a summary that provided adequate detail to allow the comparison to be verified in circumstances where details of the methodology, in conjunction with the information already available, were unlikely to be sufficient to do so). We understood further information was also not made available to BT on request. We concluded the information provided was not sufficient to ensure the details of the comparison could be verified.
On that point, ad (a) breached BCAP Code rule 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. (Comparisons with Identifiable Competitors).
2. Not upheld
We noted ads (b) and (c) made immediately clear that the comparison was with Sky’s and BT's "regular" services. Although ad (d) included the earlier general reference "Bad news Sky and BT", the claim it appeared in conjunction with was "Our superfast broadband just got even faster". We therefore considered that would be understood by consumers to be about a recent improvement to the Virgin's superfast service, rather than as a specific comparison of speeds. We noted the graph in ad (d), in which specific comparative speed claims such as "We're now 5x faster!" appeared, was clearly labelled "Our average speeds compared to Sky and BT's regular broadband". All three ads also stated in small print that the comparison was with ADSL2+ services. We considered the basis of the comparison was clear and that in the context of claims about a "superfast" service, "regular broadband" would be understood by consumers to relate to Sky’s and BT's standard (ADSL) broadband services, as opposed to their premium services or those that offered particularly enhanced speeds. We therefore concluded that consumers were not likely to be misled into believing the comparison included the superfast services offered by Sky and BT.
On that point, we investigated ads (b), (c) and (d) under 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
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),
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
3.33
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), but did not find them in breach.
3. Upheld
We acknowledged the references to downloading "5x faster than Sky and BT's regular broadband" were general and did not explicitly state that all consumers would be able to download five times faster at all times. We considered consumers were likely to be aware that the speed of broadband services would vary according to factors such as the time of day and that the references to "regular broadband" in the primary claims, with additional explanation about "peak average" speeds in the qualifying text, meant the basis of the comparison was clear. However, we noted the claims that consumers would be able to "download 5x faster than Sky and BT's regular broadband" were not in conditional language and therefore considered they were likely to be understood to mean that Virgin's superfast service was always five times faster than Sky’s and BT's regular services, even when normal variations such as the time of day were taken into account. Because we understood that was not the case, and the ads did not make immediately clear that the claims were based on an average, we considered the qualifying text contradicted that impression. We therefore concluded that the claims were misleading.
On that point, 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),
3.9
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.
(Substantiation),
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). Ads (b), (c) and (d) 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
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),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are 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.
(Substantiation),
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
3.33
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).
Action
The ads must not appear again in their current form. We told Virgin Media Ltd to ensure they provided sufficient information about comparisons to allow them to be verified and that they did not make absolute claims if they could not be substantiated.
