Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A TV, website and press ad for Virgin Media’s broadband service.
a. The TV ad stated “Get the UK's best widely available broadband for streaming”. The ad featured Usain Bolt who picked up a tablet device. The ad cut to show several anthropomorphic characters. The scene then showed Usain Bolt without the tablet device which was being used to watch a video by two of the characters. Usain then picked up a smart phone which again was taken by a character. Another character was seen using a lap top and the ad then showed Usain watching an internet enabled TV.
b. The website www.virginmedia.com, stated “… This means that Virgin Media’s up to 152Mb service is the best for streaming, when compared to BT, Plusnet and Sky”. The website featured a table that compared Virgin Media’s up to 152 Mb service with other providers. The table included data under the headings “Download speed (Mb) 8-10pm weekday…Latency (in milliseconds) 8-10 weekday…Packet loss (%) 8-10pm weekday”.
c. The press ad stated “Get the UK's best widely available broadband for streaming … Faster wireless hub than Sky and BT”.
Issue
British Telecommunications and British Sky Broadcasting Ltd challenged whether the following claims were misleading and could be substantiated:
1. “the UK’s best widely available broadband for streaming” in ad (a);
2. “Virgin Media’s up to 152Mb service is the best for streaming, when compared to BT, Plusnet and Sky” in ad (b); and
3. “Faster wireless hub than Sky and BT” in ad (c).
Response
1. & 2. Virgin Media Ltd said ad (a) included on-screen text which stated “Up to 152Mb faster speeds compared to major UK ISPs plus low packet loss and latency (Ofcom 2014 and Farncombe tests 2014)”. They had also included a link to the relevant substantiation on their website. They said the on-screen text was shown at the same time as the voice-over “The UK’s best widely available broadband for streaming”. They said ad (b) clearly set out the metrics that Virgin Media had taken into account when they considered what would constitute a superior level of streaming performance, that is, download speed, latency and packet loss.
Virgin Media said they believed that the average consumer would consider the broadband service that provided the highest quality video streaming experience and the number of concurrent streams available, without detriment to the service, to be the best. They said that, according to the Ofcom report “UK fixed-line broadband performance, November 2014” (published in February 2015), their 152 Mb service recorded the highest average download speed compared to the other ISP packages contained in that report, including Sky, Plusnet and BT. They said the report also showed that their product had low levels of latency and low packet loss.
Virgin Media said download speeds had the greatest effect on the quality of streaming services, and latency and packet loss were also relevant albeit to a lesser extent; other metrics that affected broadband were secondary factors. They said without sufficient download speed, consumers would suffer more buffering when streaming, more delays loading web pages and downloading files would take longer. They believed their service was better than, or the same as, all other providers in terms of latency, and while some other providers were better in terms of packet loss, that factor had a comparatively small effect on the quality of a streaming service.
Virgin Media said their faster speeds were the most critical aspect of a streaming service because high definition (HD) content required up to 12 Mb/s per stream and 4 Kb/s for an on-demand service. They said at those speeds, their 152 Mb product was the only one that would be able to support two concurrent streams with bandwidth remaining for additional web surfing. They said if there was an interruption to the stream, for example due to congestion before data reached a consumer’s device, the additional speed would ensure that the buffer could be replenished before it ran out. That enabled a steady stream of video without interruption, avoiding content drop-out.
In relation to ad (a), Clearcast provided screen shots of Ofcom’s testing which they said demonstrated that Virgin Media’s up to 152 Mb broadband service was proven to be the UK’s best widely available broadband for streaming.
3. Virgin Media said the claim “Faster wireless hub than Sky and BT” in ad (c) was based on independent research which benchmarked their Super Hub against competitor hubs including Sky and BT, and demonstrated that their hub outperformed competitors on speed over a variety of ranges. They said they had made a comparative claim and had not claimed that a particular connection speed could be achieved by a consumer in their particular home set up or on a particular device. They said when the tests were carried out, they used a device that had the capability to hit top wireless speeds, optimised for Wi-Fi performance to ensure that when used across all the hubs tested, this offered the best chance of obtaining optimal results and the highest throughput for each one tested. They said there were a limited number of devices currently available that could reach top speeds and they had selected one such device as it was considered the best performing standard Wi-Fi device on the market. They said they tested that device in multiple in-home locations and across short, medium and long ranges to give a comprehensive view of its performance across the Wi-Fi spectrum. Given the device was used to test across each of the hubs for BT, Sky and TalkTalk, they believed the tests were capable of providing consumers with enough information to understand the claim.
Virgin Media said that a particular operating system was chosen to standardise the test results and to ensure they were as consistent and accurate as possible. Furthermore, the report stated “The overall average throughput performance of each Access Point under test was generally higher when tested [against the chosen operating device and operating system]”. Because it would be virtually impossible to perform tests that took into account typical consumer use, Virgin Media deemed it more informative to use a standardised set-up that tested the comparative speeds of the hubs themselves without other variables impacting on the testing and distorting the results.
Assessment
1. & 2. Upheld
The ASA understood that streaming online content involved additional factors which differed from downloading content. We considered that consumers interested in streaming content would be using it for activities such as listening to or watching videos, and we understood that additional bandwidth would be beneficial to ensure a reliable and stable connection without interruption or delay. Because we understood that many consumers would use a wireless connection for online streaming, we considered that they were likely to believe the reference to ‘broadband’ referred to the internet connection from the telephone network to an internet enabled device, including when the device was connected to the router via Wi-Fi. Furthermore, we noted that ad (a) included scenes which showed the characters using a series of wireless devices and ad (b) stated that Virgin Media were “best for streaming…”.We considered, therefore, those factors reinforced the impression that the claims included Wi-Fi connections.
We noted Virgin Media’s point that according to the relevant Ofcom report, they had the highest average download speed compared to other ISP packages and their assertion that this was the most important factor when consumers were streaming online content. Furthermore, we noted that the report highlighted that Virgin Media’s ‘up to’ 152 Mbit/s service had higher average download speeds compared with other broadband providers.
We noted Virgin Media’s assertion that latency and packet loss were less relevant for streaming performance than download speed. We noted that Virgin Media had listed those factors in ads (a), (b) and (c) and we understood that the three factors were likely to have an influence on streaming. We also noted that although Ofcom’s data on latency described Virgin Media’s 152 Mb service as better over 24-hour and peak periods than other packages, comparisons with other provider packages, such as Sky, were not listed. Furthermore, the Ofcom report stated that in terms of packet loss over 24 hours, rather than the peak times stated in ad (b), there were significant differences for various packages, several of which, including Sky, BT and Plusnet, were “better than…Virgin Media 152” and peak-time packet loss showed that most packages had no differences. We therefore considered that Virgin Media had omitted additional information relevant to their service.
The Ofcom reports were applicable to fixed-line broadband performance only and therefore we did not consider they were relevant to substantiate claims for wireless (Wi-Fi) capabilities. We therefore reviewed the third-party testing that compared the performance of Virgin Media’s hub to other providers, which they believed substantiated the claims in relation to wireless capabilities. We noted that the testing used a measurement tool which the report stated “generat[ed] network traffic and measure[ed] the Wi-Fi throughput performance of the CPE (router) under test”. While we considered that the tool used might have been capable of simulating conditions reflective of a number of typical uses, we were concerned that the tests used only one operating system, which had been upgraded to reduce buffering on Virgin Media’s device, and one make and model of computer, which we considered was not representative of the range of devices and software that might be utilised by consumers. We considered that many consumers would not be using the optimised device or software used during the third-party testing, therefore an individual consumer’s experience may not have reflected the outcome of Virgin Media’s own results. Furthermore, we understood that the testing did not take into account performance when multiple devices were being used at the same time which was likely to have a negative impact on streaming. We therefore considered that the testing had not taken into account typical consumer use to substantiate that Virgin Media’s wireless hub was faster in relation to streaming and generally superior to Sky and BT’s products and concluded the claims were misleading and had not been substantiated.
Because we considered that consumers would understand the claims to relate to an internet connection from the telephone network to an internet enabled device, including when the device was connected to the router via Wi-Fi. As Virgin Media had not provided sufficient evidence to substantiate these claims, including that their service was superior to BT, Plusnet and Sky, we concluded the ads were misleading.
On this point ad (a) breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (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), 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration) 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).
On this point ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (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), 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration) 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).
3. Upheld
We considered the claim “… Faster wireless hub than Sky and BT” in ad (c), that related specifically to the speed of their hub in relation to wireless broadband streaming, which Virgin Media considered was supported by their third-party testing. Again, as highlighted above, we did not consider the testing adequate to support the claim, especially in relation to their comparison with Sky’s and BT’s services due to the limited device and operating systems used and because it did not reflect typical consumer situations, including the likelihood that multiple devices were commonly used within a household.
Because we had not been provided with adequate evidence to substantiate the claim that Virgin Media offered the fastest wireless hub compared with Sky and BT, we concluded the ad was misleading.
On this point ad (c) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (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), 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration) 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 not to make claims of superiority against their competitors, claim they provided the best service for streaming or to state or imply their wireless hub was faster than their competitors’, in the absence of adequate substantiation.
