ASA Adjudication on Virgin Media Ltd
Virgin Media Ltd
Bartley Wood Business Park
3 October 2012
Number of complaints:
A TV ad for a broadband service featured David Tennant walking across the screen which mimicked common on-line technical glitches. He said "Don't you just hate it when you're watching something online and it buffers, and this symbol appears?". A buffering symbol then appeared on the screen and David was shown smashing it with a baseball bat and then stamping on it. He said "Ah. that's better. Now from Virgin Media, you could say bye-bye to buffering with superfast fibre-optic broadband". After stamping on the symbol again, David's voiceover said "Join today for superfast fibre-optic broadband, unlimited UK weekend calls, all at half price for the first six months. Check it out online".
Eighteen complainants challenged whether the ad was misleading because they understood that users would still experience buffering.
Virgin Media Ltd (Virgin) stated that whilst there was a very technical definition of the word "buffering", it had a less technical meaning for consumers and had become synonymous with "interruptions" or "delays in streaming content" along with the appearance of the buffering symbol. They said the intention of the ad was to highlight the frustrations consumers may experience when that symbol appeared, particularly during video playback, demonstrated by the symbol being smashed to pieces with a baseball bat. They stated that faster broadband removed the frustrations that consumers had when buffering occurred and that the performance of Virgin Media broadband services substantiated the claim that customers could say bye-bye to buffering.
They said that download speeds of between 1.5 and 4Mb/s were required to stream video content for services such as those offered by online film rental/streaming services and that by providing a consistent download speed above that, Virgin Media's services could support video streaming services with a greater likelihood that customers would not experience buffering. They stated that Ofcom's report on UK Broadband speeds published in February 2012 and Virgin Media's own speed test data confirmed that the speeds achieved by their customers was very close to, or more than, the headline speed and that on their lowest tiered 30 MB service, no customer received download speeds of less than 15 Mb. They said the service would therefore always be in excess of the 1.5 to 4 Mb/s required to successfully stream video. Because customers would achieve these average speeds on their service, they were significantly less likely to experience buffering and it was accurate that consumers could therefore say bye-bye to buffering.
They said there were other factors that had an impact on buffering, including the limitations of the user's equipment and the site they were visiting. They stated they had followed CAP Guidance on Pricing which stated that 'could' was regarded as being conditional whereas 'can' implied a stronger probability that savings would be attained. Virgin believed the same applied in this instance and that whilst they had no control over the other factors that may impact buffering, with superfast broadcast broadband they could say goodbye to buffering. They stated that the claim was conditional and that there was no guarantee that all customers would definitely not experience buffering.
They supplied details of the definition of "buffering" as well as extracts from Ofcom's research into broadband speeds.
Clearcast acknowledged that buffering may occur to consumers on some occasions but that they considered the voice-over made no promise that buffering would no longer be experienced because of the inclusion of the word "could" in the line "You could say bye-bye to buffering with superfast fibre-optic broadband". They believed this would be understood as a claim that buffering would be less likely with fibre-optic broadband but not that it would be entirely absent. They said they had received evidence from Virgin to show that their service was quick, based on Ofcom's review of UK broadband speeds.
The ASA considered that whilst there were a number of factors that could affect buffering that were beyond the control of Virgin, it could not be assumed that the average viewer would be aware of this and that, without qualification, the claims in the ad could be understood by viewers to mean that the issue of buffering in general would be addressed by the fibre-optic broadband service. We understood from Virgin that their customers were significantly less likely to experience buffering caused by insufficient broadband speeds because of the speeds that they consistently achieved. We considered that the claim "Now from Virgin Media, you could say goodbye to buffering with superfast fibre-optic broadband" could be understood in the intended way but, because it was unclear to which element of the statement the conditional "could" applied, it could equally be understood by viewers to mean that consumers would eliminate buffering if they signed up to the Virgin Media broadband service. We considered this was exacerbated by the images in the ad of David Tennant destroying the "buffering" symbol, which would be understood by viewers as a visual representation of the complete removal of buffering. Because of the ambiguity of the way in which the claim was presented, we concluded that the ad was misleading.
The ad breached BCAP Code rules 3.1 (Misleading advertising), 3.9 (Substantiation) and 3.12 (Exaggeration).
The ad should not appear again it in current form.