Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A website and TV ad for Virgin Media, seen in August 2021:
a. A page on the website www.virginmedia.com featured the headline claim “We are the UK’s fastest major broadband provider” and smaller text said “Based on Gig1 Fibre avg download speed 1,130Mbps vs avg download speeds of major UK ISPs. To verify see below. Gig1 available in selected cities. Check availability”. Further text stated “Fastest median download speed Virgin Media – 1130Mbps BT – 910Mbps Vodafone – 900Mbps TalkTalk – No media stated / over 900Mbps EE – 300Mbps Sky (inc. Sky Now TV) – 500Mbps Post Office – 67Mbps Plusnet – 66MBps [sic] Availability of services from other major UK ISPs will differ from Virgin Media’s services”.
b. The TV ad included small on-screen text at the bottom of the ad which stated “UK’s Fastest Major Broadband Provider; based on Gig1 Fibre avg download speed 1,130Mbps vs avg download speeds of major UK ISPs. See Virginmedia.com/speed-comparison. Gig1 available in selected cities. Check availability at virginmedia.com”. At the end of the ad, large on-screen text stated “The UK’s fastest major broadband provider”.
Issue
British Telecommunications plc (BT), who understood the Gig1 Fibre service was only available in certain areas of the UK, challenged whether the claims:
1. “We are the UK’s fastest major broadband provider” was misleading and could be substantiated; and
2. was verifiable.
Response
1. Virgin Media said the claim promoted the fact that they provided the fastest broadband compared to any major provider in the UK. The claim was based on a comparison of the fastest average download speed supplied by Virgin Media with the fastest average download speeds supplied by other major providers. Their Gig1 Fibre service supplied their fastest speeds, which had a median peak download speed of 1,136Mbps, which they rounded down to 1,130Mbps. The next fastest median peak time download speed in the UK was provided by British Telecommunications (BT) at 910Mbps. The claim was about Virgin Media’s status as a broadband provider relative to its competitors, and not a comparison of the availability of services throughout the UK.
Qualifying text in both ads made clear that the claim was attributed to Virgin Media’s Gig1 Fibre service and informed consumers that it was only available in selected cities. In their opinion, the qualifying text was sufficiently prominent and did not counter the overall impression of the ad.
At the time the ad was seen, their Gig1 Fibre service was available to 14.3 million homes across the UK, which represented over 90% of their cable network. By the end of 2021 they had upgraded their Gig1 Fibre service to cover their entire cable network, which reached 15.5 million homes.
Clearcast, responding in relation to the TV ad, endorsed Virgin Media’s comments. The claim was about being the “fastest” and was suitably qualified with the inclusion of “Gig1 available in selected cities”. They had engaged a consultant to assess the data that was used to determine Virgin Media’s Gig1 Fibre service median speed. The consultant was satisfied that the data supported the claim. When considering how to define ‘major broadband provider’ Clearcast took into account a previous ASA ruling. From that ruling they cited how the ASA had considered factors such as brand awareness, number of customers and advertising presence determined whether a broadband provider would be considered as one of the leading names in the industry. In Clearcasts’ opinion, Virgin Media had demonstrated that they had the fastest broadband speeds of all the major providers.
2. Virgin Media said they hosted a table on their website that compared the fastest average download speeds of major broadband providers with Virgin Media’s fastest average download speed. They used the publicly quoted median peak time speeds for their competitors in the verification table.
In their opinion, it would not have been necessary or helpful for consumers to see the underlying data used to calculate the median download speed of their Gig1 Fibre service, because it was complicated to digest. Additionally, the figure was calculated using the recognised standard for advertising of speeds generally within the industry.
They used an independent company to measure the speed of their Gig1 Fibre service and the methodology used was in accordance with Ofcom’s Voluntary Residential Broadband Speeds Code of Practice. They also followed CAP Guidance relating to the presentation of broadband speeds. In accordance with that Guidance, the data was based on peak-time measurements (between 8pm-10pm, Monday to Sunday) and was measured from all the areas where Gig1 Fibre was present at the time the ad was published. They provided a statement from the same company that confirmed they had reviewed the data, in line with Ofcom’s code of practice, in regard to Virgin Media’s Gig1 Fibre service.
Virgin Media provided the data that was used to calculate the average median download speed. They said they had submitted this information to Clearcast as part of the clearance process for the TV ad. They also said that Clearcast used an external expert to assess the data as part of their clearance process and they were satisfied with the quality of the data.
Clearcast, responding in relation to the TV ad, said they advised from the outset that a verification route would be required, and that the information provided would need to be sufficient to allow a viewer or competitor to assess the evidence for the claim themselves.
Assessment
1. Not upheld
The ASA considered consumers would understand the claim “We are the UK’s fastest major broadband provider” in both ads to mean that Virgin Media had the fastest broadband service available in the UK, compared with other broadband providers they would readily identify as one of the leading names in the industry.
BT were concerned because their full fibre 900Mbps service was available in some locations where Virgin Media’s Gig1 Fibre service was not. Therefore, for those consumers, the fastest major broadband provider was not Virgin Media but BT.
Both ads included prominent qualifying text that explained that the claim was based on the average download speed of Virgin Media’s Gig1 Fibre service compared to the average download speed of other major internet service providers in the UK. We considered that text served to clarify consumers’ understanding of the basis on which the headline claim was made. Ad (a) additionally prominently listed the broadband providers that the comparison had been made against and their average download speeds, which provided more detailed clarification.The qualifying text also stated “Gig1 available in selected cities” and advised consumers to “Check availability”. We considered that this made clear to consumers that it would not be available in all areas, and they would first need to check whether they were eligible to get the service. We considered the qualifying text in both ads therefore also clarified the headline claim in that regard. We acknowledged that for a minority of consumers the fastest broadband service available from a major provider would be from BT rather than Virgin Media, but considered that the fact the ad made clear the Gig1 Fibre service was not available in all areas was sufficient to qualify the claim and that consumers would not understand from the claim that Virgin Media would always be their fastest broadband option.
We reviewed the information Virgin Media had provided to substantiate the average download speeds stated in the ads. The methodology used to calculate the average download speed of their Gig1 Fibre service was in accordance with Ofcom’s Voluntary Residential Broadband Speeds Code of Practice and the CAP Advertising Guidance for broadband speed claims. The average download speeds for the other major broadband providers that Virgin Media had used were the providers’ publicly stated speeds, which we understood would have been calculated using the same methodology. We therefore accepted that Virgin Media’s average download speed for their Gig1 service was, at 1,136Mbps, faster than the average broadband speeds of the other providers.
There was no accepted definition of a “major provider” in the broadband market, although we noted from Ofcom’s Comparing Service Quality 2021 report that Virgin Media, BT, EE, Plusnet, Post Office, Sky, TalkTalk, Vodafone and KCOM had been listed as major providers of broadband. With the exception of KCOM, which was only currently available in a limited region around Hull, we considered the broadband providers Virgin Media had compared their Gig1 Fibre service to would be readily identified by consumers as the leading names in the industry. A report by the Office for National Statistics estimated that in 2020 there were 27.8 million households in the UK. The Gig1 Fibre service was, therefore, available to over half of UK households (14.3 million homes at the time the ads were seen).
Because the evidence substantiated that the average download speed of Virgin Media’s Gig1 Fibre service was faster than other major broadband providers, we concluded the claim was not misleading.
We investigated ad (a) under CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
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.
2).
(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.
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), but did not find it in breach.
We investigated ad (b) under BCAP Code rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
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.
2).
(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.
3.11
3.11
Qualifications must be presented clearly.
BCAP has published guidance on superimposed text to help television broadcasters ensure compliance with rule
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section
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.
2).
. The guidance is available at:
Use of superimposed text in television advertising
(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 it in breach.
2. Upheld
The CAP and BCAP Codes required comparisons with identifiable competitors to be verifiable. That meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include, or direct a consumer to, sufficient information to allow them to understand the comparison, and be able to check the claims were accurate.
Ad (a) included the table which detailed the average download speed for Virgin Media’s Gig1 Fibre service and the fastest average download speed figures for BT, EE, Plusnet, Post Office, Sky, TalkTalk and Vodafone. Ad (b) did not include that information but did include a URL which took viewers to ad (a). We considered that ad (b) therefore adequately signposted viewers to where they could find more detailed information about the comparison.
We considered that Virgin Media did not necessarily need to make available the underlying data that had been used to calculate the median download speed of their Gig1 Fibre service. However, we considered that in order for consumers to verify the comparison, further information should be provided in ad (a) about the methodology used to calculate the figure for Virgin Media’s own speed, and to clarify the source of information for the download speeds for the other broadband providers. Because that had not been provided, we concluded the verification information was not sufficient to allow consumers or competitors to understand the comparison, and as such, the claim as it appeared in both ads (a) and (b) was not verifiable.
On that point, ad (a) breached CAP Code (Edition 12) 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), and ad (b) 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).
Action
The ads must not appear again in the form complained about. We told Virgin Media Ltd to ensure they included sufficient information to allow consumers and competitors to verify the comparisons made in their advertising.
