ASA Adjudication on Virgin Media Ltd

Ad

A website and an internet banner ad, for Virgin Media, appeared in December 2010:

a. The website, www.stopthebroadbandcon.org, included mechanisms to sign a petition and to share the page via social networking sites as well as a video that parodied a Sky TV ad. It was headlined “STOP the BROADBAND CON!”. Text below stated “Support the Campaign for Broadband Honesty”. Further text included “You deserve the truth from all ISPs and we’re urging the Advertising Standards Authority to put a stop to misleading broadband advertising once and for all ... ”, “Learn from Aladdin ... Don’t get conned this Christmas! We’ve just launched a new video to raise awareness about our campaign. Poor Aladdin is tricked by a genie who fails to deliver any of the Christmas wishes he was expecting ... please share it with your friends and remind them not to get conned by their broadband provider ...”. Text under the heading “A few words from Richard Branson” included “Some Internet Service Providers (ISPs) just aren’t keeping up with their promises. Many of them are advertising superfast broadband speeds they know full well they cannot deliver, offering speeds of ‘up to’ 20Mb but delivering an average of just 6.5Mb. And what does this mean for the customer at the end of the line? Buffering, delays ...”, “Faster broadband means better broadband, whether you’re surfing the web, watching TV online, downloading music or sharing photos. More speed also means more bandwidth, so the whole family can get online at the same time without the service grinding to a halt. Staying connected is central to our lives and we all deserve broadband we can trust. I’m challenging all broadband providers to be honest with their customers ... Virgin Media is already delivering the fastest broadband in the UK and it’s prepared to be open about the exact broadband speeds it delivers. It’s the first ISP in the UK to publish the typical real world speeds its customers receive each month. This means every existing and potential customer can go online and see for themselves exactly what speeds they can reasonably expect. All other ISPs should be doing the same, so you can make an informed choice about how to spend your money, rather than having to rely on the fairytales and broken promises of current broadband advertising ... If ISPs can get away with keeping customers in the dark about the speeds they actually provide, there’s little incentive for companies to invest in better services and improve your broadband ...”, “Are you getting what you pay for? Lots of people aren’t”, “Millions of broadband users are being short-changed every day without knowing it, because their broadband speed is nowhere near as fast as they expect or what they pay for”, “... At Virgin Media, we don’t tell people a theoretical maximum figure; we tell them the typical broadband speed they can expect to receive. We publish the typical average speeds our customers receive each month across our 10Mb, 20Mb and 50Mb services at www.virginmedia.com/speedhonesty. Because we don’t use old-fashioned telephone lines but a modern fibre optic network. Virgin Media’s 10Mb and 20Mb services delivers [sic] average speeds more than twice as fast as our DSL competitors, with around 90% of our advertised speed being delivered to customers. And we’re even faster with our 50Mb and 100Mb broadband ...”, “Ofcom found Virgin Media broadband is twice as fast as other providers ... ”.

b. The banner ad was headlined “Not getting the broadband speed you’re paying for?”. Text below stated “Stop the broadband con”. The ad included a link, labelled “Sign the petition”, to the above website.

Issue

British Sky Broadcasting Ltd (Sky) and British Telecommunications plc (BT) challenged whether:

1. the text "STOP the BROADBAND CON!", "Support the Campaign for Broadband Honesty", "You deserve the truth ... " and "remind them not to get conned by their broadband provider this Christmas", and the video parody, in ad (a), and "Stop the broadband con" in ad (b), denigrated other internet service providers (ISPs) by suggesting they dealt with their customers dishonestly;

2. the claims "millions of broadband users are being short-changed every day, without knowing it, because their broadband speed is nowhere near as fast as they expect or what they pay for" and "Are you getting what you pay for? Lots of people aren't" in ad (a), and "Not getting the broadband speed you're paying for?" in ad (b), were misleading, because most ADSL providers were committed to explaining to consumers the speed their line could support, and the factors that could affect that, at the point of sale; and

3. the claim "Faster broadband means better broadband, whether you're surfing the web, watching TV online ... " in ad (a) misleadingly implied a faster connection would always give a perceivable benefit for surfing the web and watching TV online.

4. BT also challenged whether the claim "Ofcom found Virgin Media broadband is twice as fast as other providers" in ad (a) was misleading, because it did not take their Infinity service into account.

Sky also challenged whether the claims:

5. "Ofcom found Virgin Media broadband is twice as fast as other providers" in ad (a) misleadingly suggested that was the case in all circumstances, whereas they understood the Ofcom report did not take into account the impact of traffic management policies and Virgin Medias 20 Mbit/s National Broadband ADSL product;

6. "delivering an average of just 6.5 Mbit/s. And what does this mean for the customer at the end of the line? Buffering, delays ... " in ad (a) misleadingly exaggerated the benefits of faster connections, because consumers receiving a download speed of 6.5 Mbit/s would generally not suffer delays caused by download speed in ordinary internet usage;

7. "with around 90% of our advertised speed being delivered to customers" in ad (a) misleadingly implied all customers received around 90% of the advertised speed, whereas they understood Virgin Media cable customers received less than that speed on average; and

8. "we don't use old-fashioned telephone lines but a modern fibre optic network" in ad (a) was misleading, because they understood Virgin Media used traditional telephone lines for their National Broadband product.

CAP Code (Edition 12)

Response

Virgin Media Ltd (Virgin) said there was widespread dissatisfaction among consumers about the advertising of broadband speeds. Virgin said they considered the gap that existed between broadband advertising speed claims and the speeds consumers received was damaging because it undermined consumers' trust. They believed ISPs should publish the 'typical' speed of their broadband service to enable consumers to make an informed choice. They said they published their typical cable speeds online every month and had gauged public opinion on the publication of typical speeds. As part of that they had created the PR campaign published on www.stopthebroadbandcon.org, which primarily included speed statistics, a letter from Richard Branson, summaries of why Virgin thought typical speeds were important and links to relevant sites. They said the website used a '.org' domain, which were allocated for non-commercial use; it did not include any calls to buy Virgin products and the only link to their main website was to the typical speed data they published each month. They said the website did not take users through a sales journey but was instead a challenge to all ISPs, including Virgin, to be open about speed performance data and realistic about the speeds consumers were likely to receive rather than relying on theoretical maximums that did not reflect the average users experience. They said the campaign website was a place to voice consumer concern over the issue.

1. Virgin said the campaign used the slogan "stop the broadband con" as a punchy description of the issue at hand. It was not intended as an attack on the integrity of other ISPs. They said the website used the look and feel of placard protests and reflected the iconography of down-to-earth citizen activism. They believed consumers were likely to understand those visual cues as to the sites crusading purpose of opening up public debate and campaigning for change. They said the aim of the site was expressly stated on the 'About' page, which also stated that it was created by Virgin media and included the text "Support the Campaign for Broadband Honesty" and "You deserve the truth ... ", which were intended to encourage support for the idea of ISPs publishing speed data. They said the statement "remind them not to get conned by their broadband provider this Christmas" was a straightforward call to action for those already involved in the campaign and the video, which was posted before the Christmas pantomime season, reminded people to check what they were getting from their broadband provider. The statement was not an accusation that consumers were being conned but a call for people to look into their broadband speeds, run an independent speed test and ensure they were getting the speeds they expected from their provider.

They said the public debate on broadband advertising was played out in the media and it was common for press coverage to include the word "con", or similar vocabulary, to describe the current situation and as a shorthand way of referring to the difference between advertised and actual speeds across the industry. They said consumers would therefore understand that the use of "con" on the website was not necessarily denigratory to other ISPs and their business practices. They said before launching the campaign they commissioned independent market research into consumers' responses to broadband speed advertising. Participants were shown a range of current broadband ads and a recent Ofcom broadband speed report, with an opportunity for spontaneous responses after seeing both. They said the overwhelming feeling was that broadband advertising was misleading and unfair; some respondents used the word "con". Virgin said the campaign did not state or imply that all other ISPs engaged in "con" activity.

2. Virgin said the text "millions of broadband users are being short-changed every day, without knowing it, because their broadband speed is nowhere near as fast as they expect or what they pay for", "Are you getting what you pay for? Lots of people aren't" and "Not getting the broadband speed you're paying for?" were used as a reflection of how public debate on broadband advertising had developed and similar statements had been used in the media. A recent survey had also suggested three million customers were not happy with the broadband speed they were getting. They said they were a signatory to the Ofcom voluntary code of practice on broadband speeds and were committed to explaining the speeds achievable on its services. However, the code related only to the point of sale, which was only part of the framework needed to ensure consumers had all of the information needed to make an informed decision. They said the campaign related to broadband advertising, rather than to information given at the point of sale. The claims did not mean that ISPs had not signed up to the voluntary code or did not have adequate pre-sales procedures but recognised that consumers were dissatisfied with the way broadband speeds were advertised.

3. Virgin said they believed there was an accepted industry position that faster speeds equated to "better broadband". They said there was a perceptible difference in "surfing the web, watching TV online, downloading music or sharing photos", because people were doing more online at the same time. They said the paragraph in which the claim appeared acknowledged that concurrent use was a key factor in determining how much speed a household would need.

4. Virgin said the comparison "Ofcom found Virgin Media broadband is twice as fast as other providers" made clear Ofcom were the source of the data and the website included a link to Ofcoms executive summary of their July 2010 report on consumer broadband services, which confirmed that BT Infinity was not included in the report. They said it was clear from the information available that the Ofcom data, and therefore the speed comparison, referred to BTs up to 20 Mbit/s DSL service, not its Infinity service. They had, however, amended the website to specify which BT services were included in the comparison.

5. Virgin said the Ofcom data did take into account traffic management policies that might have been in operation at the point the relevant speed data was collected. They said even if traffic management was in operation at the point the data was collected, their speeds were twice as fast as major DSL providers' speeds. They said the comparison "Ofcom found Virgin Media broadband is twice as fast as other providers" also referred to Ofcom data and a table and relevant text from Ofcom's report were highlighted for readers' quick reference. They said ample information was provided on the website and in linked materials to understand that the comparison was based on Virgin's cable broadband services. They said they had, however, updated the website to refer to Virgin's "cable broadband".

6. Virgin said it was not an exaggeration to state that a download speed of 6.5 Mbit/s was inadequate for ordinary internet use; research had shown that ordinary use had seen an explosion in high bandwidth content, which was driven heavily by video streaming where consumers expected a smooth experience. They said high speeds meant users had immediate access to a wide variety of content they would otherwise need to wait for. Consumers would notice interruptions in their online experience when the rate at which video data was transferred to their device was slower than the rate required to play it. They said the executive summary of the Ofcom report stated that for many consumers, current generation broadband was unable to deliver the faster speeds that would allow the use of high bandwidth services such as internet TV or to connect multiple devices to the internet.

They said the amount of bandwidth available to consumers would vary according to how their connection was being used and research had shown many consumers connected wirelessly, regularly using two or more devices simultaneously. Virgin said research had also shown 'basic digital households' would require a connection of 6.182 Mbit/s when all household members were online at the same time whereas 'smart and connected' households would require a bandwidth of 36 Mbit/s for all members. They said the average UK internet household lay somewhere between the two but was more likely to be 'smart and connected'. They said such buffering was annoying for consumers, because it prevented them from watching video content online and it was apparent that 6.5 Mbit/s would not be sufficient for the ordinary internet usage of average households. They said it was therefore not misleading to imply that higher speeds meant fewer delays and made the user experience better.

7. Virgin said the webpage was intended to be read as a whole, and consumers would understand the claim "... with around 90% of our advertised speed being delivered to customers" in the context of text that referred to them publishing typical average speeds. They said the typical average speeds referred to were those that at least 66% of customers received on average in a particular month for a particular product; that methodology was detailed within the link to their main website. They said the 'speed honesty' page on their main website included a table that each month showed that the typical average speed of each Virgin broadband product was above 90% of the advertised headline speed. They said the page and its associated references clearly demonstrated how the methodology averages were obtained.

8. Virgin said the site made clear at various points that the claims related to their cable product, which was the product they were known for. They said they did offer an ADSL service to consumers outside of their cable network but that was not promoted and was offered to prospective customers only after a postcode check had been completed. They said the proportion of ADSL customers they had was small in comparison to their cable customers. They said they therefore believed it was not misleading to focus on the cable service in their marketing material however the website had nevertheless been updated to refer to "cable broadband".

Assessment

1. Upheld

The ASA noted ad (a) included references to Virgin's concerns about broadband advertising. We also noted, however, it made repeated references to consumers being "conned" by their broadband providers and also included text such as "Support the Campaign for Broadband Honesty", "You deserve the truth ...", "Poor Aladdin is tricked ..." and "I'm challenging all broadband providers to be honest with their customers". We considered the ad went beyond highlighting the disparity Virgin believed existed between advertised broadband speeds compared to those that were delivered and that it implied other ISPs dealt with consumers dishonestly in relation to broadband speeds. We noted ad (b) did not refer to broadband advertising in particular and therefore considered the text "Not getting the broadband speed youre paying for ... Stop the broadband con" was also likely to be interpreted as suggesting other ISPs dealt with consumers dishonestly in relation to broadband speeds, rather than as highlighting Virgin's concerns about the disparity they believed existed between broadband advertising and speeds delivered to consumers. We therefore concluded that the claims were denigratory.

On this point, ads (a) and (b) breached CAP Code (Edition 12) rule 3.42 (Imitation and denigration).

2. Upheld

We noted the claims "millions of broadband users are being short-changed every day, without knowing it, because their broadband speed is nowhere near as fast as they expect or what they pay for" and "Are you getting what you pay for? Lots of people aren't" in ad (a), and "Not getting the broadband speed you're paying for?" in ad (b) were also intended to relate to the discrepancy Virgin believed existed between the broadband speeds in advertising and the speeds delivered by ISPs to users. We noted ad (a) included references to the problems they considered existed in broadband advertising. We considered, however, particularly in the context of repeated references to consumers being "conned" by their broadband providers, to a lack of honesty on the part of the ISPs and of text such as "If ISPs can get away with keeping customers in the dark about the speeds they actually provide ...", the overall impression of the ad was such that it was likely to be interpreted as relating to other ISPs' wider business practices in relation to the way they informed consumers of their likely broadband speeds. We also noted ad (b) did not refer to advertising and therefore also considered the claims were likely to be interpreted as being general, rather than related only to advertising for broadband. We considered the claims implied other ISPs did not share with consumers details of the speed they were likely to receive. Because we understood consumers were generally given information related to the speed their line could be expected to support before signing up to a broadband service, we concluded the ads misleadingly suggested other ISPs were not willing to share that information with consumers.

On this point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.33 (Comparisons with identifiable competitors).

3. Upheld

We noted the claim "Faster broadband means better broadband, whether you're surfing the web, watching TV online ... " in ad (a) was intended to relate particularly to broadband being used concurrently within households. We considered however the claim was likely to be interpreted to be an absolute one and that consumers would therefore expect that Virgin could demonstrate that was the case in all instances. We noted we had not seen evidence to demonstrate that was the case in all instances or in cases when broadband connections were used concurrently by Virgin customers compared to the customers of other ISPs. We understood that, in order to surf the web or stream TV online without interruptions, consumers would need a certain amount of bandwidth and that some ADSL customers would have sufficient bandwidth to do so, even if their service was used concurrently. We noted that Virgin would therefore be unable to offer those ADSL customers who were not experiencing interruption problems an improved broadband experience. Because Virgin had not demonstrated that a faster connection equated to a better broadband experience in all instances for surfing the web and watching TV online, we concluded that the claim was misleading.

On this point, ad (a) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration) and 3.33 (Comparisons with identifiable competitors).

4. Upheld

We acknowledged Virgin had amended the ad to make clear which BT services were included in the comparison. We considered, however, the claim "Ofcom found Virgin Media broadband is twice as fast as other providers" in ad (a) was likely to be interpreted as an absolute one and that consumers would therefore expect Virgin to be in a position to demonstrate that was the case in all instances. We noted that information related to the comparison was available in the relevant Ofcom report but that the basis of the comparison was not stated in the ad itself. Because the ad did not make clear that the comparison excluded BT's Infinity service, we concluded that it misleadingly implied Virgin could demonstrate that their broadband was twice as fast as other providers in all instances.

On this point, ad (a) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 Substantiation, 3.11 (Exaggeration) and 3.33 (Comparisons with identifiable competitors).

5. Upheld

We acknowledged Virgin had amended the ad to make clear claims were intended to refer to their cable broadband service. We considered, however, the claim "Ofcom found Virgin Media broadband is twice as fast as other providers" in ad (a) was likely to be interpreted as being absolute and that consumers would therefore expect that Virgin could demonstrate that was the case in all instances, including for ADSL users and those that might be affected by traffic management policies. We noted the ad did not make clear that the claims were intended to refer only to Virgins cable service or that, as their report stated, the Ofcom research generally did not capture traffic management policies in its data. Because it did not make clear that the comparison excluded Virgin's ADSL services and generally did not capture the effect of traffic management policies, we concluded that the ad misleadingly implied Virgin could demonstrate that their broadband was twice as fast as other providers in all instances.

On this point, ad (a) breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration) and 3.33 (Comparisons with identifiable competitors).

6. Upheld

We noted that various factors could affect the quality of a broadband service. The Ofcom executive summary stated that for many consumers, current generation broadband was unable to deliver the faster speeds that would allow the use of high bandwidth services such as internet TV, or to connect multiple devices to the internet. We considered, however, the claim " ... delivering an average of just 6.5Mb. And what does this mean for the customer at the end of the line? Buffering delays ... " in ad (a) was not likely to be interpreted as a reference to potential future demand for high bandwidth services but as being an absolute claim. We therefore considered consumers would expect that Virgin could demonstrate that was the case in all instances. We also noted the research Virgin referred to appeared to suggest internet use now required an increasing amount of bandwidth, particularly when members of a household were connected simultaneously, but noted we had seen only short extracts from that research. Nevertheless, we considered research related to the amount of bandwidth households might use was not directly relevant to a claim that an average speed of 6.5 Mbit/s would always cause delays. Because we had not seen evidence that a speed of 6.5 Mbit/s would cause delays for internet users in all instances, we concluded that the claim was misleading.

On this point, ad (a) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration) and 3.33 (Comparisons with identifiable competitors).

7. Upheld

We noted the claim " ... with around 90% of our advertised speed being delivered to customers" in ad (a) was intended to refer to the typical average speeds that were published online each month in relation to particular Virgin services. We acknowledged the claim would be read in context but noted the basis of the claim was not made clear in the ad itself. We considered it was unclear the claim was intended to refer to typical average speeds and that it was instead likely to be interpreted as suggesting all Virgin customers received around 90% of the speed advertised. Because that was not the case, we concluded that the claim was misleading.

On this point, ad (a) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration) and 3.33 (Comparisons with identifiable competitors).

8. Upheld

We acknowledged Virgin had amended the ad to make clear claims were intended to refer to their cable broadband service. We noted it stated " ... we don't use old-fashioned telephone lines but a modern fibre optic network" but that Virgin also provided an ADSL service, which did use telephone lines. In the absence of clarification of that, we considered the claim was likely to be interpreted as referring to all Virgin broadband services. We noted that Virgin stated the proportion of their customers who received the ADSL service was small; however, we considered that proportion constituted a significant number of customers. Because the ad did not make clear that not that all Virgin broadband services used "a modern fibre optic network", we concluded that the claim was misleading.

On this point, ad (a) breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.11 (Exaggeration) and 3.33 (Comparisons with identifiable competitors).

Action

The ads must not appear again in their current form. We told Virgin to ensure the basis of comparative claims was made clear in future advertising. We also told them to ensure their marketing material did not discredit or denigrate other marketers.

Adjudication of the ASA Council (Non-broadcast)