A press ad for a Sky movie rental service stated "New Sky Store is like having a huge movie store in your home - available instantly through your Sky+ box... Rent movies instantly through your Sky+ box..." Small print text stated "Sky Store: Compatible black Sky+/Sky+HD box with a fast enough Broadband connection, Sky TV and Anytime+ activation required.
British Telecommunications plc (BT) challenged whether the claims "New Sky Store ... available instantly through your Sky+ box" and "Rent movies instantly through your Sky+ box" misleadingly exaggerated the speed with which consumers could use the service.
British Sky Broadcasting Ltd (Sky) said Sky Store was an online movie rental service that allowed customers to use their remote control to download movies via their broadband connection to their Sky+ box. They believed customers would understand the words "rent movies instantly" to mean that they could rent a movie directly through their Sky+ box and begin viewing within seconds, as opposed to minutes. They said Sky Store allowed customers to begin watching a movie before it had been fully downloaded, at the earliest point possible without the customer hitting a download buffer that would interrupt playback. They believed that, based on the line connection data that their network platform collected at regular intervals from active Sky Broadband connections, the large majority of those with ADSL broadband would be able to start watching a movie within a minute. They believed consumers understood that services provided over the internet would be affected by the speed of their broadband connection and they pointed out that the small print had emphasised that a "fast enough broadband connection" was required.
The ASA considered that consumers would understand that video content accessed via the internet would be affected by the speed of their home internet and that they would need a "fast enough broadband connection" in order for the service to allow them to rent movies "instantly", which we considered they would interpret to mean straightaway, or with no noticeable delay.
We noted that Sky estimated a significant majority of ADSL broadband users would be able to begin watching an average length movie within less than a minute after beginning the download, and we understood that customers with faster fibre optic and cable broadband connections were much more likely to be able to begin viewing within that time frame. However, we considered that a delay of up to a minute for most customers (and longer for those with slower broadband connections) would not be in line with their reasonable expectations for an online movie service which was described as "instant". We therefore considered that the ad had exaggerated the capabilities of the service and we concluded that it 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. (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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
The ad must not appear again in its current form. We told Sky to ensure future ads did not exaggerate the speed with which consumers would be able to access movies using Sky Store.