Ad description
An ad in a technology magazine for Virgin Media broadband, was headed “Put yourself in pole position with up to 50Mb broadband.” Further text stated “Get the edge in gaming with the UK’s fastest broadband, now half price for 6 months. - 7x faster than UK average download speeds* for smoother gameplay and virtually no lag. ...” Small print stated “... *Source: Virgin Media’s up to 50Mb average download speeds vs UK average download speeds. Ofcom Nov/Dec 2010 measured using SamKnows technology ...”.
Issue
British Telecommunications plc (BT) challenged whether the claim “UK’s fastest broadband” was misleading and could be substantiated.
Response
Virgin Media Ltd (Virgin) said they considered the claim was adequately qualified and that it would not be misleading to consumers. They said they considered it would be clear to consumers that the claim was made in the context of the Ofcom/SamKnows report referred to in the ad, which covered 90% of the UK broadband market. They said the report found that no other broadband service measured by Ofcom had download speeds in excess of Virgin’s download speeds. They confirmed that the report found that the UK average download speed was 6.2 Mb/s, and that Virgin’s average speed over 24 hours, 43.9 to 47.2Mb/s, was over seven times faster than the average.
Virgin clarified that their ads which used the “UK’s fastest broadband” claim usually included caveats that the claim was made in relation to broadband services that were widely available to UK consumers, although the ad which had been complained about had not included those caveats. They said the “widely available” wording used in their other ads was used to acknowledge the existence of niche providers that currently had speeds in excess of their own. They said that those niche providers accounted for around 0.01% of homes in the UK. They added that those providers did not offer their services in Virgin cabled areas, and so consumers who signed up with Virgin as a result of seeing the ad would not have been misled, because the fastest service they could get would be Virgin broadband. They said the ad did contain a caveat which stated “CABLE AVAILABILITY DEPENDS ON AREA”.
Assessment
Upheld
The ASA noted that a previous adjudication, published in July 2011, had found that, because there were localised instances of niche providers or other ISPs not included in Ofcom’s reports that provided faster download speeds than Virgin’s, the absolute claim “The fastest broadband in the UK” was misleading.
We considered that the similar claim “UK’s fastest broadband” was also an absolute claim, because it implied that it was not possible to obtain a broadband connection in the UK that delivered a faster maximum download speed than Virgin’s 50 Mb service. However, we understood that there were some instances of localised niche providers that delivered download speeds which were faster. We understood that those equated to a small percentage of homes in the UK, but nonetheless considered that, because some UK consumers could achieve faster download speeds than those delivered by Virgin, the claim was misleading.
We also understood that, where their ads included the claim “UK’s fastest broadband”, Virgin usually included qualifications to the effect that the claim was made in relation to broadband services which were widely available to UK consumers. We considered, however, that if such a qualification appeared in a statement additional to the absolute claim “UK’s fastest broadband”, for example in the body copy or small print of the ad, it would contradict rather than clarify the claim. We considered that in order for such a qualification to clarify rather than contradict the claim, it should be included within the claim.
We concluded the claim “UK’s fastest broadband” was misleading.
The ad breached CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other comparisons).
Action
The ad must not appear again in its current form. We told Virgin not to claim that their broadband was the fastest in the UK unless they held adequate comparative evidence to substantiate that was the case.
