ASA Adjudication on British Telecommunications plc

Ad

A TV ad, for BT on demand services, stated "BT Vision is a clever way to watch TV on demand". On-screen text stated "BT Vision requires BT total broadband (subject to minimum term & line speed). BT Vision Hub, Vision+ box and BT line. Mac users require adaptor. Freeview requires suitable aerial & coverage. Charges apply for on-demand content. Conditions apply." The voice-over continued, "Choose from new film releases like Slumdog Millionaire before they're shown on Sky Movies, and box sets like CSI Miami, all ready for you to watch on your TV whenever suits you best, so you never have to fit into a schedule. BT Vision, the TV you love, when you want it." On-screen text stated "New release films are available on Sky Box Office at the same time as BT Vision. Some titles coming soon." Final on-screen text stated "Brought to you by BT total Broadband".

Issue

1. Sky and two members of the public objected that the ad misleadingly implied that movies were available on BT Vision before Sky.

2. Sky objected that the comparison of Sky Movies with BT Vision was not like for like because on-demand films were shown at the same time on Sky Box Office as BT Vision.

BCAP TV Code

Response

1. British Telecommunications plc (BT) said they did not believe the claim "Choose from new film releases ... before they're shown on Sky Movies" implied that BT Vision made films available before Sky. They said Sky Movies was the dominant brand for films in the area of multi-channel viewing and was widely promoted under that brand name. They believed that, in making a direct reference to that name, rather than to Sky alone or "Sky movie channels", the claim could only be reasonably interpreted in its literal meaning. They said the approach was further supported by the on-screen text which stated that the claim did not apply to another Sky service with a different brand name, namely "Sky Box Office".

Clearcast said the ad was approved on the basis that BT made it clear which Sky service they were comparing against, namely Sky Movies. They believed it clearly stated that new release films were available on BT Vision before Sky Movies and at the same time as Sky Box Office. They did not believe viewers were likely to be misled.

2. BT said they appreciated that, in many respects, Sky Box Office was more similar to BT Visions on-demand film service than Sky Movies and they had acknowledged that in the on-screen text. They said, although both Sky and BT Vision fulfilled the same broad function, that of supplying television entertainment to consumers, overall they provided a different kind of service. They said Sky TV was a broadcast subscription service with a relatively small range of on-demand content whereas BT Vision was an on-demand service with optional subscriptions and a relatively small range of (Freeview) broadcast content.

BT said they were seeking to promote their overall service in contrast to the market leader. They said Sky had a strong dominance in the marketplace and they had taken the decision to compare with Sky Movies not with the intention of creating an artificial advantage, but to make it known to consumers that they could see new releases without subscription on their service before they were available with the most popular film channel, Sky Movies. They said Sky Movies was the dominant brand for films with a 1.5% market share of overall multi-channel viewing, compared to only a 0.1% share for Sky Box Office film services.

Clearcast said they did not believe the comparison was unfair. They said they accepted that BT Vision was more similar to Sky Box Office than to Sky Movies as both BT Vision and Sky Box Office offered on demand film content. However, they did not believe viewers were likely to be confused between the services Sky offered. They said the on-screen text in the ad highlighted the fact that new release movies were available from both providers at the same time.

Assessment

1. Upheld

The ASA understood that BT Vision was an on-demand service, available to BT Total Broadband customers. We understood those customers could either opt to pay a monthly fee in order to access a library of on-demand content at no extra cost (which included films but not the new releases promoted in the ad, for which there was an additional charge) or choose to pay on a per programme basis for any on-demand content, including new film releases, as well as having access to regular television. We understood that Sky Box Office was an add-on service available to Sky subscribers, which also made programmes and films available to customers on a pay-per-programme basis. We understood that Sky Movies were rolling film channels with particular themes, such as Sky Movies Family or Sky Movies Action and Horror, which could be available to viewers with Sky or other digital TV providers, depending on whether customers had opted into them as part of their package. We understood that films on Sky Movies did not have to be paid for individually but could not be watched at the time of a viewer's choosing unless the viewer also had the facility (available with some types of subscription) to pause live TV, whereas new film releases on BT Vision and Sky Box Office did have to be paid for individually but could be watched at a time of the viewer's choosing.

We noted that new films were generally released first in cinemas and would then become available via on demand services such as BT Vision and Sky Box Office, before becoming available on dedicated film TV channels such as Sky Movies. We considered that, because the distinction between Sky Movies and Sky Box Office was unlikely to be clear to all viewers, the claim "BT Vision is a clever way to watch TV on demand ... choose from new film releases like Slumdog Millionaire before they're shown on Sky Movies" was likely to give the misleading impression that it was possible to see new movies on BT Vision before they were released on Sky. We noted on-screen text stating "New release films are available on Sky Box Office at the same time as BT Vision" but concluded this was insufficient to avoid the misleading impression given by the ad as a whole.

On this point the ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1, 5.1.2, 5.1.3 (Misleading advertising) 5.4.2 (Misleading advertising: superimposed text) and 5.4.6 (Misleading advertising: comparative advertising).

2. Upheld

We considered that, because in terms of the on-demand availability of new release films, the most similar Sky service to BT Vision was Sky Box Office, whereas the comparison drawn was between BT Vision and Sky Movies, the ad was likely to mislead by giving viewers the impression that they would be able to see new movies more quickly with BT Vision than with Sky when that was not the case. We noted on-screen text stating "New release films are available on Sky Box Office at the same time as BT Vision" but concluded that was insufficient to remove the overall impression that new release films were available more quickly with BT than with Sky. We concluded that the comparison was likely to mislead.

On this point the ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1.1, 5.1.2, 5.1.3 (Misleading advertising) 5.4.2 (Misleading advertising: superimposed text) and 5.4.6 (Misleading advertising: comparative advertising).

Action

The ad must not be broadcast again in its current form.

Adjudication of the ASA Council (Broadcast)