Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A regional press ad, for a TV service, included the claim "Huge on demand library With free TV and movies". The ad also included the text "Available from BT, TalkTalk and all major retailers".
Issue
British Sky Broadcasting Ltd challenged whether the claim "With free TV and movies" was misleading, because:
1. they believed it implied movies were free on YouView, whereas that was not the case; and
2. it did not make clear that to receive free TV consumers were required to purchase a set-top box, or the cost of purchasing a box.
Response
YouView TV Ltd said they no longer used the claim and were willing to make changes to their advertising. They had not received any complaints from consumers about the ad.
1. They said one of their founding principles was to offer a free TV service to consumers. Consumers could purchase a set-top box and access free-to-air and on-demand services without paying any fee or subscription. The service included free search functionality and backwards electronic programme guide services. Paid-for services were optionally also available. YouView TV did not have any involvement in those paid services, because they were arranged directly between the consumer and the owner of the relevant service. For example, Sky's NOW TV service currently made movies available, on a paid-for basis, via the YouView platform. When consumers searched for content via YouView TV, it was made clear what was free and what was paid-for. They said there was around eight times the amount of free content compared to paid-for material. They said their advertising had always made clear what was free and what was not and they should be able to continue to do so.
They said the "free" claim appeared in the context of the broader claim, "Huge on demand library", and could be understood to mean that there was "free TV" and, separately, "movies" rather than necessarily suggesting there were free movies. YouView TV said there were currently over 17,000 hours of free TV available via the on-demand library and free-to-air movies were also available via that library, where broadcasters secured the relevant rights. While they believed the claim might also be interpreted as suggesting there were some movies available to watch for free via YouView TV, which was true given the availability of TV movies via on-demand services, they said the claim could not be interpreted as suggesting that all movies available on YouView TV were free, which was not the case.
YouView TV said at any one time there were approximately 12,000 hours of free on-demand content, including movies. While that would vary from month to month, that variation was not in YouView TV's control but was determined by the broadcasters responsible for the on-demand services. They provided examples of the content available in recent months, including the number of movies. Content via on-demand players could be accessed for free via a PC or a set-top box such as for YouView TV. They said the box directed consumers to on-demand content without any charge, unlike some TV services which involved installation fees and monthly subscriptions. They said the "free" claim was not prominent and was used only in the context of the claim regarding the on-demand library. The aim of the ad was to promote brand awareness, rather than to focus on the availability of movies.
2. YouView TV said consumers did not pay them directly for the set-top box, which was instead available via retailers. Both the set-top box and a TV were required to access the service. They understood "free" claims were acceptable where there was a one-off cost, such as the need to buy digital receiving equipment. Nevertheless, the ad included an image of the set-top box and stated in the body copy that it was "Available from BT, TalkTalk and all major retailers", which they considered made clear a box was required to achieve the services described in the ad. They said there were several ways of obtaining a YouView TV branded set-top box, including where it was given away free as part of broadband or TV packages from internet service providers. It could also be purchased as a one-off from various retailers at a range of prices.
They said all advertising for YouView TV made clear that the service was available via a set-top box and consumers would therefore understand the necessity of owning a box to obtain YouView TV. They emphasised that the service provided was not a 'package', whereby service, subscription or top-up fees were paid to YouView TV. They also did not determine which channels consumers could watch and did not aggregate or mediate content. In addition, they did not manufacture or sell the set-top boxes.
Assessment
1. Upheld
The ASA considered, in the context of the text "Huge on demand library", the claim "With free TV and movies" was likely to be interpreted as suggesting both TV content and movies could be accessed without payment via the on-demand services that could be accessed on YouView TV, which we understood was the case. However, we noted the ad did not make clear that additional movies available via the YouView TV platform required payment to the relevant provider.
We acknowledged that some providers that allowed consumers access to on-demand services via set-top boxes operated on a subscription basis and might also involve one-off set up costs. However, we understood that such packages generally also included additional content not available elsewhere. We also understood that the same on-demand content that could be accessed via YouView TV could also be accessed elsewhere without payment if consumers had an eligible TV, other set-top box or internet access via a PC, for example. We considered the claim was likely to be understood by consumers to mean the "free TV and movies" available via YouView TV were additional, for example via a free dedicated on-demand movie service, to those that were available to consumers via on-demand platforms elsewhere. We understood that was not the case and therefore concluded that the claim was misleading.
On this point, the ad breached CAP Code (Edition 12) rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising).
2. Upheld
We considered that consumers would understand that YouView TV was delivered via the box shown in the ad, which had the listed functionality and which enabled the user to access on-demand services free of any charges over and above the cost of buying the box. However, we were concerned that the ad did not include the cost of the box, and that consumers would therefore be unaware of the extent of the commitment they must make in order to access those free services.
We understood that YouView TV did not retail the boxes themselves and that they were sometimes provided as part of a package offered by internet service providers. Although we recognised that the box would not be sold at the same price by “all major retailers” referred to in the ad, we noted that the YouView TV website stated that the box would cost “from £197.99” and we considered that the ad should have included similar information regarding the indicative cost to the consumer of buying the box. Because it did not, we concluded that the ad was likely to mislead.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications 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),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.23
3.23
Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer.
(Free).
Action
The ad must not appear again in its current form. We told YouView TV not to imply that the free on-demand services were additional to those available via on-demand platforms elsewhere and to make clear the cost of the box that consumers must buy in order to access those free services.
