Virgin Media Ltd 160 Great Portland Street London W1W 5QA Number of complaints: 3

Date: 7 November 2007 Media: Direct mail, National press Sector: Computers and telecommunications

Ad
A direct mailing and a national press ad for Virgin Media.

a. The direct mailing stated "... Get more Add our amazing V+ service (it's like Sky+ only better) ... Record not 1, but 2 channels, while watching a 3rd ...".

b. The national press ad stated "V++ Sky- You may be surprised to learn that Sky+ isn't the only digital video recorder around. Our V+ comes with more than a few pluses of its own ... +Better than Sky+ because you can record two channels and watch a third: Sky+ only allows you to record one channel while watching another channel ...+Free servicing and repairs - Sky charge a minimum call out fee of £65 if you're not covered by a warranty ...".

Issue
1. British Sky Broadcasting Ltd (Sky) and two members of the public challenged whether the claim "Better than Sky+ because you can record two channels and watch a third: Sky+ only allows you to record one channel while watching another channel ..." in ad (b) was misleading, because they believed it was also possible to record two channels and watch a third with Sky+.

Sky challenged whether:

2. the comparison of V+ with Sky+ in both ads was misleading, because V+ was a high definition receiver whereas Sky+ was a standard definition receiver. They believed the correct comparison would have been with their Sky HD receiver;

3. the claim "Sky charge a minimum call out fee of £65 if you're not covered by a warranty ..." in ad (b) was misleading because the Sky box came with a free 12 month warranty under which there was no call out fee;  

4. the claim "it's like Sky+ only better" in ad (a) could be substantiated; and

5. the claim "V++ Sky-" in ad (b) misleadingly implied that V+ was superior to the Sky box.

The CAP Code:

3.1;7.1;18.1;18.2

Response
1. Virgin Media (Virgin) asserted that it was not possible to record two channels whilst watching a third with Sky digital receivers.  

2. 4. & 5. Virgin said the product features mentioned in ad (b) were intended to expand on the headline "Our V+ comes with more than a few pluses of its own".  They said the comparison between V+ and Sky specifically related to one product feature only: the ability to record two channels and watch a third at the same time with V+. They said the other statements were straightforward descriptions of V+s benefits and were not intended to be a general comparison between the Sky+ and V+ digital receivers.   

Virgin argued that the phrase to Sky+ a programme had become a common term that was used to describe recording programmes; they believed it had become an alternative phrase to digital recording and had replaced the terms to record and to video.  They sent pages from various websites that showed people had used the phrase when referring to digital recording. They asserted that it was therefore more relevant to talk about Sky+ when discussing the act of recording programmes.

3. Virgin pointed out that the ad stated the £65 call-out charge was applicable only if the customer was not already covered by warranty.  They asserted that, once a Sky+ customer's 12-month warranty expired, unless they purchased an extended warranty, they would not be automatically covered and would have to pay a £65 call-out charge for servicing and repairs.  They argued that the claim was therefore factually correct and not misleading.  

Assessment
1. Not upheld
The ASA considered that the claims " ... Sky+ only allows you to record one channel while watching another channel ..." in ad (b), and also the claim "Record not 1, but 2 channels, while watching a 3rd ..." in ad (a), implied that Sky digital receivers did not allow viewers to record two different channels whilst watching a third live channel, whereas V+ did. We understood that Sky+ and Sky HD digital receivers allowed viewers to record two different channels whilst watching a third pre-recorded programme.  We also understood that Sky+ and Sky HD receivers allowed viewers to record two different channels whilst watching one of those channels being recorded.  However, we understood that Sky+ and Sky HD did not allow viewers to record two different channels whilst watching a third live channel and considered therefore that the claims were unlikely to mislead.

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

2. Upheld
We noted the website pages sent by Virgin showed some third parties used the phrase to Sky+ to refer to recording programmes on digital receivers.  We also noted Sky offered two digital receivers: Sky+ and Sky HD. We considered that readers were likely to infer from the ads, particularly the claims "You may be surprised to learn that Sky+ isn't the only digital video recorder around" and "it's like Sky+ only better", that where the ads compared product features, the comparison was between the Sky+ digital receiver and the V+ digital receiver. We understood that the V+ digital receiver was most similar to the Sky HD digital receiver, not the Sky+ receiver, because V+ and Sky HD were high definition receivers, whereas Sky+ was a standard definition receiver. We concluded therefore that the correct comparison would have been with the Sky HD receiver and the ad was therefore misleading.

On this point, the ads breached CAP Code clauses 7.1 (Truthfulness), 18.1 and 18.2 (Comparisons with identified competitors and/or their products).

3. Upheld
We noted both Sky+ and Sky HD customers automatically received a free 12-month warranty on purchasing their digital receiver. We noted the ad correctly stated that Sky customers who were not covered by a warranty had to pay a £65 call-out fee but considered that, in the absence of qualification, readers were likely to infer from the ad that Sky customers would always be liable to pay a call-out charge unless they purchased a warranty. Because the ad did not make clear that that was not always the case and new customers would be covered for free for the first 12 months, we considered that the claim was misleading.

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

4. & 5. Upheld
We noted Virgin's argument that the ads were not intended as a general comparison between the Sky+ and V+ digital receivers and the comparison specifically related to only one product feature: the ability to record two channels and watch a third at the same time with V+. However, because the claims "V++ Sky-" and "it's like Sky+ only better" were followed by a list of features of V+, we considered that readers were likely to interpret some of those features as the criteria for V+ being better than Sky+; they were likely to infer that V+ was superior because Sky did not offer servicing or repairs for no call out fee.  We considered that, for the reasons outlined in point three, the claim about Sky's call out fee was misleading and concluded therefore that, in the context of that claim, the claims "V++ Sky-" and "it's like Sky+ only better" were also misleading.

On points 4 & 5, the ads breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 18.1 (Comparisons with identified competitors and/or their products).

Action
We told Virgin not to compare the V+ digital receiver with the Sky+ receiver and to ensure future comparisons were made with competitors' most similar products and made clear whether they were comparing a single aspect of a product or making a general comparison.  We told them not to imply competitors always charged for a service if that was not always the case.  

Adjudication of the ASA Council (Non-broadcast)