ASA Adjudication on British Sky Broadcasting Ltd

Ad

A national press ad, a regional press ad, a circular and an internet banner ad for Sky's "See Speak and Surf" package.

a. the national press ad was headlined "Why pay £305 more with ntl: Virgin? Sky Broadband + Sky Talk + Sky TV, ALL 3 FOR £26 PER MONTH" and text stated "Surf more with up to 8Mb super fast Sky Broadband, Speak more with free UK* evening and weekend calls with Sky Talk, And See more with over 100 quality channels with Sky TV. Everything is jam-packed and the whole lot is yours for just £26 a month - and that's not a special offer, that's a great-value set price, saving you up to £305 a year versus the equivalent ntl:Virgin products". Small print stated "Comparison made with ntl:Virgin's equivalent products - Size XL digital TV (£20.50 a month), Size L broadband (£25 a month) and Size L Talk Weekends and Evenings (£16.50 a month) over a period of 12 months and including an install fee of £25".

b. the regional press ad was headlined "SAVE" and stated "Why are more people than ever joining Sky? With See, Speak, Surf we're saving customers up to £305* a year compared to ntl/Virgin and still giving them better TV, faster broadband and free UK evening and weekend calls.* Instead of short-term offers that shoot up, Sky has everyday prices that stay low and our customers get one simple bill. The small print was the same as that in ad (a).

c. the circular was headed "Switch" and stated "£305 saving with Sky compared to Virgin Media**". Small print stated "**Savings claim of £305 for the first year and £300 afterwards based upon comparison between the monthly standard cost of Sky's Entertainment Pack (£23 a month), Sky Broadband up to 8Mb (£5 a month) and Sky Talk Freetime plus line rental (£11 from BT) (a total of £37 a month plus a £20 activation fee) and Virgin Media's equivalent products size XL digital TV (£20.50 a month), size L broadband (£25 a month) and size L Talk Weekends & Evenings (£16.50 a month) (a total of £62 a month plus a £25 installation fee), £305 saving in your first year (£300 in subsequent years) and assumes you are not in the minimum term of an existing contract".

d. the internet banner ad was headlined "speak and savour" and text stated "Sky Broadband, Sky Talk, Sky TV All 3 for £26 a month, subject to availability".

Issue

Two members of the public and Virgin Media challenged whether the ads were misleading because:

1. the claim in ads (a), (b) and (c) that Sky's service saved customers "£305 a year" was based on an unfair comparison, because Sky had compared Virgin Media's stand alone prices for those products, whereas Virgin also offered a bundled package for a reduced price; and

2. the reference to "ntl:Virgin" and "ntl/Virgin" in ads (a) and (b) was likely to confuse readers, because no such company existed.

Virgin Media also challenged whether the ads were misleading because:

3. ad (d) did not make clear that the additional cost of BT line rental applied to the package;

4. the claim "better TV" in ad (b) could not be substantiated, because they believed Virgin Media had more TV channels and at least 1000 hours of on demand TV programmes; and

5. the text "Instead of short-term offers that shoot up" in ad (b) misleadingly implied that Virgin's prices were short term and might increase in future.

CAP Code (Edition 11)

Response

1. Sky said the ad sought to compare three of their products; 6Mix TV (also called the Entertainment pack), Sky Broadband Mid (up to 8Mb) and Sky Talk Freetime, with the three nearest equivalent Virgin Media products.    They had calculated the costs to the consumer of taking those three products over a 12-month period including any set up charges such as installation fees.  They provided a copy of a print out from Virgin Media's website which confirmed the prices of the three products and they said they had also confirmed the pricing with Virgin Media's call centres on several occasions.

Sky said they had considered the bundle prices that were available from Virgin Media at the time the ads were published but the only bundle price available for telephony, broadband and television was Virgin's three for £30 bundle.  They said because the products in that bundle were not equivalent to their three products they had considered it was not an appropriate comparison.  They said information about the type of products that had been compared was stated clearly in the small print of the ads and they believed consumers would understand the details of the comparison.  

2. Sky said the reference to ntl:Virgin and ntl/Virgin had been a shorthand method of making clear to consumers that the products being compared were exactly the same as those previously offered by ntl before its re-branding as Virgin Media.  They said those products had been re-named and re-priced by ntl on 1 February and were subsequently re-launched under the Virgin Media brand on 8 February.  They said that given the close proximity of the publication of their ads to the re-branding of Virgin Media, they had considered that there was a greater likelihood of consumer confusion if they did not make clear the provenance of the products being compared.

3. Sky said the banner ad did not contain a call to action and if a consumer was interested in the product the only way for them to proceed was by clicking on the ad itself, which automatically linked customers to their website. They said their website set out the costs clearly for the customer, including the monthly line rental from BT.  They said they were aware that the CAP Helpnote "Price Claims in Telecommunications Marketing" said that if customers had to pay line-rental to a third party to access a service, advertisers were required to state that in the body copy of an ad.  They said, however, that because the ad was a banner ad rather than a print ad, they considered that the qualification of the line rental was in immediate proximity to the price claims, because the information was in a webpage that was one click away from the ad itself.  They said they believed that was equivalent to the same qualification in the body copy of a print ad.  

4. Sky said the claim "better TV" had been made in the context of a price comparison between their basic TV offering and Virgin Medias basic TV offering.  Sky said they had based the claim on both the quantity and quality of the channels available for customers using Skys 6Mix, when compared with Virgins Size XL product.  They said a Sky 6Mix customer received over 147 retailed channels plus over 200 free to air channels.  They said a Virgin Media customer using Size XL TV would receive only 134 channels of which 40 were available free to air on Sky.  In addition, they said there were a significant number of channels available to Sky 6Mix customers which were not included in Virgin Medias Size XL package, including specialist channels such as Sky Arts.  They said Skys 6Mix also included a wide range of Star TV channels including Star Gold, Star One and Star Plus, which were not available through Virgin Media.  

Sky said they also had an on-demand service, Sky Anytime, as well as Sky Box Office, which was available to all Sky TV customers.  They said those services were not all included in the monthly subscription price but pointed out that Virgin Media's Film on Demand and Music On Demand services were also not included in the subscription price (although they admitted that Virgin's TV on Demand and Catch-Up TV service were included).  They said Sky Anytime allowed Sky customers to download a variety of programme content to their PC; in February 2007 there were over 800 hours of programmes available; 160 hours of entertainment content that was available free to all Sky TV customers and 682 hours of sports and movies content, some of which was available free and some of which involved an additional fee or was available to sport and movie subscribers only.

5. Sky said the claim "Instead of short-term offers that shoot up" was intended to emphasise that their prices were not offer prices.  They said at the time the ad was published Virgin Media had various short-term offers available, which gave customers a discounted price for one or all of their services, after which the price reverted to the non-discounted price for the remainder of the contract term.  They said an example was the Virgin Media half price broadband offer, which gave Virgin Media customers broadband at half the standard price for three months after which the full price was payable for the remainder of the contract.  They said in comparison all Skys published prices were non-offer prices.  

Assessment

1. Not upheld

The ASA noted Sky had compared the stand alone prices for Virgin Medias comparable products with their standard bundle price.  We noted Virgin Media did not have an equivalent bundle package (with products that had similar specifications to the Sky products) at the time the ad appeared.  We also noted Sky had stated in the footnote which specific products had been compared and their individual prices.  

We noted the products in Virgins three for £30 bundle were not equivalent to the Sky products being advertised; the broadband speed of the Virgin product was only 2MB whereas Skys was up to 8MB, the TV service offered 84 retail channels (34 of which were available free to air on the Sky platform), rather than the 147 available through the Skys 6Mix package and the phone package offered unlimited evening calls, rather than both unlimited evening and weekend calls and a set rate of 8 pence per minute after the first hour.

We understood from Virgin Media that they operated a policy whereby the price per product was lower if a customer chose to take all three products together.  They said their pricing policy, which was found in their product bible used by all Virgin Media representatives who dealt with potential and current customers, was to take the three for £30 product bundle and add an upgrade price for each individual product.  For example, an upgrade to TV size XL was £9, to broadband size L was £7 and to phone size L was £5.50, which brought the total monthly cost to £51.50.  Virgin said the correct price difference over a year was therefore £179.

We noted Virgin Medias assertion that their customers would never pay the stand-alone prices for each of the products compared in the ad and therefore the price difference between Sky's products and their equivalent products was lower.  However, we also noted information about that policy was not available on their website or published elsewhere and that Sky had demonstrated it was possible to purchase all three products separately for the stand-alone prices from the website.  We therefore considered that consumers would not necessarily be aware of Virgin's pricing policy, nor would it have been available to Sky when they made the comparison.

We noted ad (a) stated prominently in the body copy that the savings were based on "the equivalent ntl:Virgin products" and ads (b) and (c) had asterisked the "£305" claim, which led readers directly to the small print about the basis of the comparison.  We considered, therefore, that both ads had qualified the basis of the comparison one step after the savings claim of "£305".  We concluded that because Sky had compared the most equivalent Virgin Media products and had explained the basis of their comparison, the ad was unlikely to mislead.

On this point, we considered ads (a), (b) and (c) under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.2 and 18.3 (Comparisons with identified competitors and/or their products) but did not find them in breach.

2. Not upheld

We noted Virgin Media considered that the incorrect references to "ntl:Virgin" and "ntl/Virgin" would cause confusion amongst consumers about Virgin Medias trade marks and trade names.  

However, we noted the Virgin Media brand was launched on 8 February and that the ads appeared shortly after that date.  Although we noted that the references were incorrect, we considered that most consumers would understand that the products being compared were those that were previously offered by ntl and that were now being offered by Virgin Media.  We concluded that the ad was unlikely to mislead and did not discredit or denigrate Virgins trade names.

On this point, we investigated ads (a) and (b) under CAP Code clauses 7.1 (Truthfulness) and 20.1 (Denigration or unfair advantage) but did not find them in breach.

3. Not upheld

We noted ad (d) did not contain a call to action and the information about BT line rental was clearly displayed on the first page accessed after consumers clicked on the ad.

We noted paragraph 2.4 of the CAP Helpnote "Price Claims in Telecommunications Marketing" stated "If customers must continue to pay rental to a third-party line provider to access a call service, the marketer should state that in the body copy".  However, we considered that because consumers could, with one click, immediately access a page that displayed that information, the ad itself did not need to include a reference to that additional cost.  We concluded that the ad was unlikely to mislead.

On this point, we investigated ad (d) under CAP Code clauses 7.1 (Truthfulness), 15.3 (Prices) but did not find it in breach.

4. Not upheld

We noted customers would receive 147 retailed channels plus 200 retailed channels with the Sky TV package and 134 channels on the most equivalent Virgin Media product (40 of which were available free to air on the Sky platform).  We also noted Sky offered a number of specialist channels that were not available through Virgin's TV XL package.  We noted both Virgin and Sky had some on-demand programming content available as part of their TV products.   We considered that the claim "better TV" would be interpreted by some readers as a reference to the quality of programmes available and, as such, were likely to view the claim as Sky's opinion of their TV package, rather than a specific reference to the number of channels available.  Because Sky had more channels than the most equivalent Virgin product and because some readers would see it as Sky's opinion, we concluded that the claim was unlikely to mislead.

On this point, we investigated ad (b) under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1 (Comparisons with identified competitors and/or their products) but did not find it in breach.

5. Upheld

We noted Sky had referred to one short-term offer Virgin Media had available at the time the ad appeared.   However, we considered that readers were likely to interpret the claim to mean that all or the majority of Virgin Media's prices were short term and were likely to increase in future.  We considered that Sky had failed to provide sufficient evidence to demonstrate that Virgin's prices were short term and we concluded that the ad was likely to mislead and was an unfair comparison.

On this point, ad (b) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 18.1 (Comparisons with identified competitors and/or their products).

Action

We told Sky not to refer to competitors' offers as 'short-term' unless they could substantiate that they were.

Adjudication of the ASA Council (Non-broadcast)