ASA Adjudication on Top Up TV Europe Limited

Ad

A TV ad, for Top Up TV Anytime, on Top Up TV's promotional channel began with the presenter saying "Ever wondered what it would be like if you could watch programmes from your favourite TV channels when it suits you? The kind of TV that you have more control over so you can watch what you want, when you want. Well, Top Up TV have been listening to what you, the viewers, have got to say about the kind of TV you really like and they have done something about it and put all these ideas together to create a brand new service, Top Up TV Anytime, giving you the programmes you want to watch and its launching next month". The eight-minute ad continued with various programme clips interspersed with the presenter talking. He said "Top Up TV Anytime gives you over 100 of the best programmes to watch at any one time, especially selected from 18 great digital TV channels and that's on top of all the current freeview channels you already get ... When you sign up to this service, Top Up TV will handpick a selection of programmes from the new Top Up TV Anytime channels and put them on your box every day. That means you get to pick and mix your entertainment and access the programmes you want to watch when you want to watch them. You can also tailor your package by only selecting those channels you want to see programmes from ... and because programmes are refreshed every day you'll always have something new to watch ... Top Up TV Anytime gives you greater choice than ever. Popular, quality programmes especially chosen from a range of great new channels ... you'll be able to watch ... when you want, rather than when they are being broadcast. It's new improved Top Up TV that you control ... onscreen programme guide allows you to see what you get to watch at anytime ... (programmes highlighted) below in grey are all the shows they've downloaded to your box for you. The end column shows how long you've got left to watch a programme before it get's replaced ... So for just under £10 a month you have the pick of over 100 programmes and because the programmes are refreshed daily there's always something new to watch". The presenter explained that the cost was £9.99 a month, while the cost, for new customers, of the Digital TV Recorder (DTR) required for the service was £179.99. He said that current customers could get a discount and save up to a £100 on the DTR by visiting the website, which contained details of special customer offers.

Scrolling text throughout the ad said "Top Up TV Anytime is the brand new service bringing you over 100 programmes to watch from 18 great digital channels at anyone time. Call xxxx for more information. Watch programmes from 7 new channels to Top Up TV including Paramount Comedy ... For details call xxx. More programmes, more choice and more control ...".

Issue

A viewer complained that the ad did not make the nature of Top Up TV Anytime sufficiently clear. The viewer believed the ad was misleading because:

1. it was unclear that programmes were pre-selected;

2. only 13 hours of new programmes were added each night rather than the 100s of programmes mentioned;

3. programmes were not shown at the same time as they were on cable and satellite channels but were a day old and

4. the ad did not state that there was a connection fee of £20.

BCAP TV Code

Response

1. Top Up TV Europe (Top Up) explained that Anytime was a service that allowed viewers to watch selected programmes when they wanted to watch them. They said the function of the service was that programmes were downloaded to a customer's box and were pre-selected by Top Up. They believed it was clearly explained, several times during the course of the ad, that programmes were pre-selected by Top Up.

2. Top Up said that viewers received, on their Top Up TV Anytime boxes, an average of 23 programmes every day, selected from 18 different channels. They said these programmes were available for seven days, or longer should the customer choose, and therefore the customer had up to 171 programmes to choose from at any one time. They said at no point did the ad claim, directly or indirectly, that 100 programmes were downloaded onto a viewer's box every night, but that over 100 programmes were available to watch at any one time. They believed the presenter had explained this by stating "For just under £10 a month, you have the pick of over 100 programmes and because the programmes are refreshed daily, there's always something new to watch", and "... and with over 100 programmes to watch from 18 of the best digital channels, you really do have total viewing control". They said the rolling text at the bottom of the screen throughout the ad reinforced the point by stating "Top Up TV Anytime is the brand new service bringing you over 100 programmes to watch from 18 digital TV channels at any one time".

3. Top Up said the ad did not claim that programmes were broadcast live, or on the same day, and had expressly stated "You'll be able to watch programmes from Top Up TV's new line up of channels when you want, rather than when they're being broadcast". They said the very nature of the service relied on pre-selected programmes and, in order for the service to have flexibility, programmes could not be broadcast at the same time as they appeared on other channels.

4. Top Up said the ad was primarily aimed at existing customers, which they believed was clear with the presenter stating "... 18 great digital TV channels and that's on top of all the current freeview channels you already get ... Top Up TV are making these boxes available at a discount to existing Top Up TV customers ... for details on special customer offers ...The website has details of the different offers available to current customers ... For example, current customers can choose to continue with no annual contract ...". Top Up explained that the £20 connection fee was included as part of an existing customer's cost of signing up to the new service and was therefore incorporated in the £100 savings mentioned in the ad. They pointed out that no actual price for the service was quoted, other than that existing customers could save over £100 and directing them to the website for further special offers available. They said both the website and telephone agents at the call centre explained a breakdown of the costs involved. Top Up said that, although they believed the ad was not misleading, they would add rolling text to the ad to make it clear that a £20 connection fee was payable by new customers.

Assessment

1. Not upheld

The ASA noted that the ad explained that programmes were "... especially selected from 18 great digital TV channels ... ", "... especially chosen from a range of great channels ..." and that "... Top Up TV will handpick a selection of programmes ...". We considered it was clear from these statements that Top Up chose the programmes that were downloaded to a customer's Anytime box.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising) and 5.2.3 (Qualifications) but did not find it in breach.

2. Not upheld

We noted the ad claimed that there were over 100 programmes for viewers to choose from at any one time, but we did not consider that it suggested these would be 100 different programmes each day. We considered that it was clear from the ad that the programme line up was "refreshed", rather than replaced, every day. We also believed that, as the aim of the service was to give viewers the opportunity to watch programmes when it suited them, customers were likely to expect programmes to be available for longer than a day before they were replaced. We concluded that viewers were unlikely to expect 100 different programmes each day.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising) and 5.2.3 (Qualifications) but did not find it in breach.

3. Not upheld

We noted that the ad clearly stated that viewers would be able to watch programmes when they wanted rather than when they were being broadcast. We considered that, in the context of the service being offered, it was unlikely that viewers would expect the programmes to be broadcast at the same time as they appeared on other platforms.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising) and 5.2.3 (Qualifications) but did not find it in breach.

4. Upheld

We noted Top Up's assertion that the ad was aimed at existing customers and had not included the actual cost of the service to them. However, we also noted that, when referring to existing customer discounts, the ad had quoted a price of £179.99 for new customers, but had not mentioned the additional cost of the connection fee. Although we welcomed Top Up's assurance that they would add onscreen text to explain the £20 connection fee, we concluded that, at the time the ad was broadcast, it was misleading in its omission of the full cost of the service to new customers.

On this point, the ad breached CAP Code clause 5.1 (Misleading advertising), 5.2.3 (Qualifications) and 5.3.2 (Pricing requirements).

Action

We told Top Up TV that, if quoting the cost of the service, the ad must include all non-optional fees.

Adjudication of the ASA Council (Broadcast)