ASA Non-broadcast Adjudication: Argos Ltd

Complaint

Ads for Top Up TV appeared on TV and in an Argos Catalogue. The TV ad showed a man trying to put a biscuit into the slot of his Freeview TV box. He said "What's this?" A woman replied "It's our new set-top-box. With a slot!" He said "What's the slot for?" and she replied "Well it's not for putting biscuits in!" The voiceover said "He's takin' the biscuit! Buy a box with a slot for your free-to-view channels and get Top Up TV as well. Eleven quality channels through your aerial including UKTV Gold, British Eurosport, Discovery Channel and more for only 7.99 a month. With no annual contract you can just subscribe on a monthly basis. Call today or visit your electrical retailer. Top Up TV! It's what the slot's for." On-screen text said "Channels are broadcast at Top Up TV specific times".

The ad in the Argos catalogue included images for each of the available channels and displayed the times that each was broadcast on Top Up TV in small text diagonally across the image along with the channel logo.

1. Eight viewers complained that the particular characteristics of the Top Up TV service (that channels could start or end part way through a programme and only a maximum of five of the eleven channels could be viewed at any one time) were not clear from the TV ad.

2. A reader complained that the text in the Argos catalogue which outlined the times of the channels was too small to read and would therefore mislead viewers as to the extent of the particular characteristics of the service.

CAP Code (Edition 11)

Adjudication

1. Complaint upheld

The Broadcast Advertising Clearance Centre (BACC) said this issue had been looked at before by both Ofcom and the ASA and revisions to the ad had resulted in the text "Channels are broadcast at Top Up TV Specific times" which they believed made clear the nature of the service.

Top Up TV said the voiceover explained to viewers that 11 quality channels were available for a small monthly payment and without a long-term contract. They said the on-screen text served to qualify this so it was clear that the channels were only available at certain times. They did not think viewers could generally consider the text to mean anything other than Top Up TV broadcast their channels at specific times. They said viewers would not generally expect all channels to offer continuous programming and there were other examples of channels which ran at specific times, including BBC3 and BBC4, which were only broadcast after 7pm. They said Channel 4's new channel MORE4 was also only broadcast after 6pm. They said some channels, including Discovery Kids and ABC1, were also broadcast by different platforms at their own specific times which was not explained in any advertising for these platforms. They said the channel suppliers for Top Up TV had undertaken to align the output times for their channels to fit around Top Up TV scheduling and channels therefore only stopped or started part way through a programme on rare occasions. They said their customer satisfaction surveys showed that 91% rated their service as good or excellent and 92% would recommend Top Up TV to a friend. They said the nature of the service was also made clear to customers at various points before they purchased Top Up TV and provided examples of in-store displays and packaging which detailed the times of the channels. They said telephone customers would also be advised of the times of the channels when they called to make enquiries so it would be very unlikely for someone to purchase the service without being fully aware of how it worked.

We accepted that previous revisions to advertising for Top Up TV had gone some way to avoiding the likelihood of misleading viewers. However, we considered that the extent of the particular characteristics of the service, and the lack of clear information about them in the ad, was still likely to mislead some viewers. We considered the Top Up TV service to be very different from that of standalone channels such as BBC3, BBC4 or MORE4 as these channels were free-to-view and did not stop or start mid-programme. Neither did we accept that the examples of channels shown at platform-specific times were applicable as they were for single channels on a platform of many, whereas all of the Top Up TV channels were shown for less time than on other platforms. We did not consider that viewers would understand "Channels are broadcast at Top Up TV specific times" to mean that the channels would be shown for less time overall and that some programmes, which were available on other platforms, would therefore be missing from the Top Up TV schedule. We considered the text was unclear. Viewers may have interpreted it to mean that Top Up TV broadcast the same output for these 11 channels as other platforms (e.g. Sky) but just at different times of the day. Furthermore, Guidance note No. 1 (section 2a) with which licensees are obliged to comply by virtue of rule 5.4.2 of the CAP (Broadcast) TV Advertising Standards Code states that the principal offer and any important qualifications to it should not normally appear only in the form of onscreen text. We considered that the particular characteristics were important qualifications and therefore should have appeared in a form other than just on-screen text (for example in the voiceover). We considered the ad breached the Code and advised the BACC and Top Up TV that they would need to make the particular characteristics to the service sufficiently clear and prominent in all future advertising to avoid further action in view of the three previous adverse adjudications on the issue since 2004.

The TV ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.3 (Qualifications) and 5.4.2 (Superimposed text) and should not be shown again in that form.

2. Complaint upheld

Top Up TV said the text in the ad they provided to Argos was legible and that it served to inform viewers of the relevant conditions of the service.

We noted that the ad included text which outlined the broadcast times for each channel. However, we considered the text was too small for most readers to be able to read.

The Argos catalogue ad therefore breached CAP Code Clause 7.1 (Truthfulness) and should not be published again without making the channel broadcast times larger.