ASA Adjudication on Virgin Media

Ad

A direct mailing from Virgin Media stated "Dear XXXX, If you think switching to the Mother of all Broadband for only £4.50 a month is a long drawn out process think again ...".

The mailing included a table, which was headed "PICK A FIBRE OPTIC BROADBAND SPEED TO SUIT YOU" and detailed Virgin Media broadband packages of varying download speeds. Text below the table stated "Unlimited downloads and internet security come as standard …".

Small print stated "… Acceptable Use Policy applies …".

Issue

The complainant challenged whether the claim "Unlimited downloads ... come as standard" was sufficiently qualified because restrictions to the service were not made clear. He understood that Virgin imposed a speed capping restriction between 4pm and 9pm each day.

CAP Code (Edition 11)

Response

Virgin Media (VM) explained that the use of "unlimited" had previously been approved by the ASA, provided it was qualified with a footnote disclaimer that stated "acceptable use policy applies".  They pointed out that the mailing incorporated that disclaimer.  In addition, they understood from a previous ASA adjudication that, if a data limit was imposed by a provider, but only a small number of customers exceeded the data limit, it remained acceptable to use an "unlimited" claim.  They explained that only a small proportion of VM customers, whose usage was unusually large, were affected by the traffic management policy.  They confirmed that, at no point would any user be prevented from downloading data after a certain level was reached, nor would they be charged after they reached the threshold.  The traffic management policy merely moderated the speed at which very heavy users were able to download data for a temporary period to ensure that the service was fair for everyone.   

They said, regardless, they were willing to elaborate on the small print further by adding to the disclaimer to clarify that a subscriber traffic management policy applied.

Assessment

Upheld

The ASA understood that VM's traffic management policy would affect only the heaviest users at peak hours and that only then after an abnormal amount of material had been downloaded such that other users' performance was affected.  We noted at no point would the amount of content they could download be restricted, only that after a maximum threshold value had been reached, those users' speeds would be affected.  We, therefore, considered that the "unlimited" claim was acceptable, provided it was appropriately qualified.

We recognised that the small print text stated "Acceptable Use Policy applies" and that VM were willing to add to the small print to clarify that a traffic management policy was in place.  We noted, however, the small print attached to the mailing was fairly lengthy, for very valid reasons, and the existing disclaimer was not, therefore, immediately noticeable.  

We considered that the "Unlimited downloads" claim was a significant factor likely to influence consumers' purchasing behaviour and the condition attached to it, a traffic management policy at peak hours, should, therefore, be made apparent.  We concluded that the mailing should have included a link to the relevant area of such extensive small print to alert consumers that the "unlimited" claim was subject to conditions for some users.  We welcomed VM's willingness to add to the small print to clarify that a traffic management policy was in place and asked them to make clear the peak hours when it applied.

The mailing breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).

Action

The mailing must not appear again in its current form.

Adjudication of the ASA Council (Non-broadcast)