Background

Summary of Council decision:

Three issues were investigated all of which were Upheld.

Ad description

A TV ad and a press ad for Virgin Media's Big Kahuna Bundle:

a. The TV ad featured the actor David Tennant who stated "Some services can feel a bit slow and well, not that reliable. But, the Virgin Media network is superfast with superfast fibre optic broadband ... And it also has the amazing TiVo putting you in control of the boxsets and matches you love." David Tennant was then depicted sitting in a large campervan with a wall-mounted television screen on either side of him; one of which showed a football match on Sky Sports. On-screen text stated "Content dependent on device & TV package. Sky Sports subscription required from £17/month ... ". David Tennant continued, "Then, of course, there's the wonderful landline ... " The accompanying visuals showed a telephone appear beside him. At the end of the ad, David Tennant stated, "The new Big Kahuna bundle has landed. Get it all for just £30 a month for the first six months." On-screen text stated "Virgin phone line £15.99/month".

b. The press ad featured text that stated, "Hi Sky customers, we could save you over £370 a year. So what are you waiting for? Switch today". The ad included two tables that compared the monthly cost of Sky's "Family Bundle" and Virgin Media's "Big Kahuna Bundle". Text beneath the table for Virgin Media stated, "Virgin Media's total annual saving £376.92". A banner at the foot of the ad stated, "Switch and save today Visit us in store virginmedia.com Call XXXX XXX XXXX ... Text 'save' to XXXXX and we'll be in touch with more info". The small print stated "... INSTALLATION FEE £49.95 APPLIES ... ".

Issue

BSkyB challenged whether:

1. ad (a) misleadingly implied that Sky Sports was included in the advertised price; and

2. the savings claim, in ad (b), were misleading, because they understood that a non-optional installation fee applied to new Virgin customers.

3. A member of the public, challenged whether ad (a) misleadingly implied that line rental was included in the advertised price.

Response

1. Virgin Media Ltd said that, at the beginning of the ad, David Tennant referred to the Virgin Media network as a whole. They said that, at the time the Sky Sports content was shown, the ad included on-screen text that made clear that there was an additional charge for that content. They said that text was held on-screen for nearly twice the length of time that the Sky Sports logo appeared in the ad.

Virgin Media said the reference to "matches you love" referred to the availability of football matches on BT Sport and ESPN, which were included in the Big Kahuna bundle. They pointed out that the ad included no details of any particular Sky Sports package and said that, if Sky Sports were included in the package, it would have featured prominently in the ad. They believed consumers were aware that different Sky Sports packages were available and would therefore expect the ad to detail which package was included. They believed the reference to "from £17/month", in the on-screen text, reinforced the fact that a number of Sky Sports packages were available.

Virgin Media said the claim "Get it all for just £30 a month" referred to the four services highlighted rather than the specific content in them. They pointed out that the claim was accompanied by visuals that showed the four icons for the services.

Clearcast said that, at the time the Sky Sports content was shown, the ad included on-screen text that made clear that there was an additional charge for that content. They believed viewers would understand the ad to mean that the Big Kahuna bundle was available for £30 a month and that to add Sky Sports would cost £17 a month. They believed the inclusion of the four icons made clear the elements of the bundle viewers would receive for £30.

2. Virgin Media believed the installation costs for customers signing up to Sky services were comparable if not greater than the Virgin Media installation costs. They said there was an ongoing offer on the Virgin Media website for free installation, which was available to any new customer. They also said the comparison in the ad was between the monthly cost of the services and said the reference to "Monthly total" at the foot of the comparison tables made that clear.

3. Virgin Media believed the line rental cost was presented clearly when the most prominently stated bundle price appeared on screen and in the voice-over.

Clearcast believed the ad made sufficiently clear the line rental cost. They said the on-screen text was more prominent than the on-screen text that preceded it. They believed viewers would understand from the ad that a Virgin phone line needed to be paid at a cost of £15.99 in order to take advantage of the advertised offer.

Assessment

1. Upheld

The ASA noted the ad depicted David Tennant sitting in a large campervan with a wall-mounted television screen on either side of him; one of which showed a football match on Sky Sports. David Tennant stated, "... it also has the amazing TiVo putting you in control of the boxsets and matches you love." He gestured in the direction of the TiVo box and the TV that showed a free kick in slow-motion.

We considered the presentation of the visuals and audio implied that Sky Sports was included in the advertised package. Whilst we acknowledged that on-screen text made clear that a Sky Sports subscription was required, we considered that information was not given sufficient prominence, particularly given the prominent display of a football match on a Sky Sports channel.

Towards the conclusion of the ad David Tennant stated, "Get it all for just £30 a month for the first six months." We considered consumers would understand that claim to mean that the elements shown in the ad, including Sky Sports, were included in the advertised offer. However, we understand that was not the case.

We concluded that the ad misleadingly implied that Sky Sports was included in the advertised price.

On this point, ad (a) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
 (Misleading advertising).

2. Upheld

The ad targeted existing Sky customers and invited them to "Switch today". It sought to highlight the financial benefits of switching to Virgin Media and listed the monthly costs. We considered that as part of their consideration of the advertised offer, existing Sky customers would consider all costs they would incur in switching their service to Virgin Media, including potential installation costs.

We understood that, at the time the ad appeared, there was an ongoing offer on the Virgin Media website for free installation. However, that offer was not made clear in ad (b), which invited customers to switch to Virgin Media's service. We therefore considered consumers viewing the ad would not be aware of the free installation offer and may not take advantage of that offer.

Whilst the ad focused on a comparison of the difference in the monthly costs, we considered the applicable installation cost was material information that consumers needed in order to make an informed choice about the advertised offer and whether to switch their service. Whilst the small print stated, "INSTALLATION FEE £49.95 APPLIES", we considered the ad failed to give sufficient prominence to that information. On that basis, we concluded that the ad was likely to mislead.

On this point, ad (b) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification) and  3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.  (Comparisons).

3. Upheld

The ad focused on the various elements of the package: broadband; TiVo; landline; and a mobile sim. David Tennant made reference to 'the wonderful landline' and accompanying visuals showed a telephone appear beside him. The voice-over at the conclusion of the ad stated, ”Get it all for just £30 a month for the first six months” and was accompanied by on-screen text that stated ”£30” and visuals that showed icons for each of the four services included in the advertised package, which included a landline. Additional on-screen text stated, ”Virgin phone line £15.99/month”. We considered the overall impression of the ad was that line rental was included in the package for £30 and that the on-screen text ”Virgin phone line £15.99/month” was not sufficient to offset that impression. Because the ad misleadingly implied that line rental was included in the advertised price, we concluded that it breached the Code on this point.

On this point, ad (a) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
 (misleading advertising),  3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  and  3.11 3.11 Qualifications must be presented clearly.
BCAP has published Guidance on Superimposed Text to help television broadcasters ensure compliance with rule  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  . The guidance is available at:
http://www.cap.org.uk/~/media/Files/CAP/Help%20notes%20new/BCAP_Advertising_Guidance_Notes_1.ashx
 (Qualification) and  3.18 3.18 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product or service depicted in the advertisement.  (Prices).

Action

The ads must not appear again in their current form. We told Virgin Media Ltd to ensure that ads were not likely to mislead consumers in future and to ensure that material information was given sufficient prominence.

BCAP Code

3.1     3.10     3.11     3.18     3.2    

CAP Code (Edition 12)

3.1     3.10     3.17     3.3     3.33     3.9    


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