ASA Adjudication on Virgin Media Ltd

Ad

Two posters and a national press ad, for broadband from Virgin Media. a. The first poster stated "HATE TO WAIT? THE UK'S FASTEST BROADBAND IS FIBRE OPTIC Only from Virgin Media". b. The second poster stated "FIBRE OPTIC BROADBAND ... The UK's fastest broadband is fibre optic. Only from Virgin Media". c. The national press ad stated "... So it's faster. In fact, it's the fastest broadband you can get*. Right now we're offering you speeds of up to 20Mb ... That said, Virgin fibre optic broadband is the UK'S best performing broadband ...Virgin's fibre optic broadband comes in three speeds. You can choose from up to: 2Mb, 4Mb or 20Mb …". The small print in all three ads stated "... *Fastest broadband claim based on Epitiro data for 01/10/07 to 31/12/07 (up to 20Mb cable broadband vs BT, TalkTalk, Tiscali and AOL ADSL Max). Fastest "heavy weight" ISP in 2007. Broadbandchoices.co.uk. Benchmarking and performance monitoring services supplied by Epitiro Ltd. Epitiro benchmark performance of major UK ISPs 24/7. Tests on up to 20Mb cable broadband and ADSL Max - download speed, upload speed, ping time, packet loss and DNS time - 01/10/07 to 31/12/07 ...".

Issue

1. Two members of the public challenged whether the claim "UK's fastest broadband" could be substantiated, because they believed other providers supplied up to 24 Mb broadband.

2. One member of the public and British Sky Broadcasting Ltd (Sky) challenged whether the use of the Epitiro data was sufficient to substantiate the claims, because they believed it only covered Epitiro's members, did not relate to the whole industry and only related to up to 20 Mb broadband, which only a small percentage of UK customers received.

CAP Code (Edition 11)

Response

1. Virgin Media (Virgin) said their claim to offer the "fastest" broadband in the UK was based on data that compared "throughput" speeds, the actual speeds that a customer experienced when using the internet, rather than headline marketing speeds such as "up to X Mb". They asserted that headline speeds were only a maximum theoretical download speed that customers could experience. They believed, in contrast, "throughput" speeds were a truer indicator and comparator of speed, because they represented the actual speed that customers received from their broadband service. Virgin said factors that affected a customer's actual speed included distance from the local telephone exchange for ADSL, contention and the equipment used, such as the age of consumers' PCs and the types of applications on their hard drives.  

Virgin asserted that actual throughput speeds had already been acknowledged by Ofcom as a more representative way of benchmarking broadband performance.

2. Virgin said their fastest claim was substantiated by data from Epitiro and Broadbandchoices.co.uk, not just Epitiro. They pointed out that their small print stated "Fastest broadband claim based on Epitiro data for 01/10/07 to 31/12/07 (up to 20Mb cable broadband versus BT, TalkTalk, Tiscali and AOL ADSL Max).  Fastest heavy weight ISP in 2007, Broadbandchoices.co.uk."

Virgin said Epitiro was an independent ISP benchmarking company that collected data on ISPs and provided access to that data for a small fee. They said the specific data they had purchased from Epitiro included five of the top six ISPs but did not include Sky.  

Virgin asserted that the combined market share of the ISPs their Epitiro data measured was around 90%. They said the Epitiro data they used to substantiate their "fastest" claim focused on average throughput speeds on a month by month basis. They sent a copy of the data, which they believed showed that they had substantially outperformed their ADSL competitors over the period referred to in the small-print of the ad.  

Virgin sent a link to the Broadbandchoices.co.uk website which showed they had been awarded gold in the "Heavy Weight" Broadband category for average actual speeds delivered in 2007. Virgin said the award looked at ISPs offering headline speeds from 16  to  24 Mb and included Be and Sky, who were the largest ISPs offering high speed internet access with around 9.2% combined market share. Virgin argued that the award proved that they outperformed those ISPs offering 16-24 Mb services, of which further supported their "fastest" claim. Virgin argued that, using both Epitiro and broadbandchoices.co.uk, their broadband performance was compared against all of the top six UK ISPs with a total combined market share of 98.9% in the UK market.

Virgin asserted that another independent speed testing website, Broadband Expert, conducted over 25,000 speed tests on a vast number of ISPs every month and Virgin were ranked fastest in the over 16 Mb category.

Virgin said their up to 20 Mb Broadband was available across their digital cable network which reached 46% of UK consumers.  They said their cable network was their main competitive advantage and believed that they had every right to compare their services to their competitors, none of which reached 100% of UK consumers. They also said they had made every effort to benchmark Virgin services against all their competitors and believed capturing data from over 98.9% of the market provided a robust basis for their "fastest" claim. Virgin asserted that there was no data source on the market today which benchmarked the performance of 100% of the broadband market.  They believed the technicalities of capturing data from a vast number of geographically diverse and very small providers, holding just a 1.1% share of the broadband market, was currently not possible.

Virgin argued that none of the ads lead consumers to believe that all of their services were the fastest available and that the small-print made clear that their "fastest" claim was based solely on their up to 20 Mb product. Virgin also said they had taken Advice from the CAP Copy Advice team and believed the advice they received allowed them to use the claim.

Assessment

1. Upheld

The ASA noted Virgin had based their "fastest" claim on throughput speeds rather than on advertised "up to" download speeds. We considered, however, that readers would be used to definitions of broadband speed in terms of download speeds and were therefore likely to understand the claim "fastest" as an absolute claim that implied it was not possible to obtain a broadband connection in the UK that permitted a faster maximum download speed than Virgin's service. We understood that, on the basis of a previous ASA adjudication, cable broadband technology allowed users, on average, to experience a faster broadband service in terms of throughput speeds when compared to the equivalent ADSL based service. We understood that that was due to the fibre-optic and co-axial cable technology such services used. We understood, however, that it was possible for users to obtain a broadband service with a faster maximum broadband download speed than 20 Mb, on an ADSL2+ based service, allowing speeds of up to 24 Mb. Because we understood that it was possible in certain instances for some customers in optimum conditions to obtain a faster maximum broadband download speed than Virgin's 20 Mb service, we concluded that such an absolute claim was misleading.

On this point, the ads breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1 (Comparisons with identified competitors and/or their products) and 19.1 (Other comparisons).

2. Upheld

We understood that Epitiro measured the performance of all major UK ISPs but some of that information was not available to Virgin; the Epitiro data sent by Virgin was a subset covering only those ISPs that subscribed to that specific Epitiro benchmarking service.  We noted the data did not include Sky but Virgin believed the combined market share of the ISPs covered was around 90%. We considered, however, that the claims "UK's fastest broadband" and "It's the fastest broadband you can get" implied they were industry-wide claims; we considered therefore that they should be supported by comparative evidence taken from all ISPs in the UK. We understood that Epitiro selected monitoring locations arbitrarily and subscribed to ISP services at those sites on a 'mystery shopper' basis.  However, companies that subscribed to Epitiro's service selected from those monitoring locations a subset of locations from which they wished to view data.  Moreover, clients could ask Epitiro to add a new monitoring location and Epitiro would do so as long as they could subscribe to the majority of UK ISP services from that new site.  Because the speed performance of ISPs could vary significantly between locations, and because ISPs had some control over which locations were included in data provided to them, we considered that that method of comparative measurement was unlikely to be sufficiently random to prove such a comparative claim. We noted the Epitiro data sent by Virgin did not cover the whole industry and concluded that it could not be used to make such comparative speed claims, because it did not evaluate all broadband providers' customer bases and it did not do so in a sufficiently random way.

We noted the small-print also referred to a Broadbandchoices award but understood that that award was based only on the median of the average individual users speed test results for each ISP; those results were based on speed tests taken by visitors to the Broadbandchoices website. We considered that an award based on the results of speed tests taken by visitors to a website was not a sufficiently random sample to give a robust nationwide average speed for each individual ISP.

We concluded that, because we had not seen robust comparative evidence from all ISPs in the UK, the ads breached the Code.  

On this point, the ads breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1 (Comparisons with identified competitors and/or their products) and 19.1 (Other comparisons).

Action

The ads must not appear again in their current form. We told Virgin not to imply their 20 Mb service was the fastest broadband available and to ensure they held robust comparative evidence from all ISPs in the UK before making similar claims. We advised them to seek advice from the CAP Copy Advice team before advertising in future.

Adjudication of the ASA Council (Non-broadcast)