A TV ad for NOW TV stated “This is NOW TV. This is the easy way to watch the latest shows you won’t find on Freeview … Watch 10 amazing live channels including Sky Atlantic, catch up TV and boxsets … Get 10 live channels plus loads of catch up for just £4.99 a month.” On-screen graphics throughout and at the end of the ad included a number of channel logos, including Sky 1. On-screen text stated “Some content unavailable on catch-up and live channels”.
The complainant challenged whether the ad was misleading because they believed the number of programmes available on Sky 1 was limited.
British Sky Broadcasting Ltd t/a NOW TV said all content featured in the ad was available to their customers to stream at the same time as they were broadcast live and they had not featured content that could not be viewed on live channels. They said the only Sky 1 content featured in the ad was Moone Body which they said was currently available via NOW TV when broadcast live on Sky 1.
NOW TV said they included on-screen text which stated “Some content is unavailable on catch up and live channels” at the same time they showed the channels available. They also said that on all pages of the NOW TV website they published a link to a list of unavailable programmes, including the relevant channels and that was referenced by the URL shown in the on-screen text. They said of the 10 channels available, during the past week, 32 shows, including movies, were unavailable to watch and eight of those were on Sky 1 which they believed was a small proportion of the available content.
Clearcast said they had considered the pre-production script very carefully before approval and sought assurances from the advertiser that all of the programmes shown in the ad were available to watch via NOW TV. They said that because not all programmes would be available on the channels featured, they advised on-screen text to be added to clarify that point. They also said that in order to sign up for the service, consumers had to visit the website that contained details of the programmes that could be viewed.
The ASA noted that the ad included a range of channels that were available via NOW TV and that had included Sky 1. We noted the number of programmes over a period of a week which NOW TV said was unavailable and we asked for further information over a longer period of time. NOW TV supplied a list of programmes unavailable on Sky 1 over a two-month period and we noted that the majority of those programmes were shown during prime time TV and most of those were 'The Simpsons' and a minority 'Futurama', neither of which had featured in the ad.
We noted the ad made specific references to the range of channels available via NOW TV and at one point the ad featured a prominent Sky 1 logo which was featured again towards the end of the ad along with other available channels. We also noted the voice-over that stated, "Watch 10 amazing live channels" which we considered gave the impression that all programmes would be available at the same time as they were broadcast. We acknowledged that on-screen text stated "some content is unavailable on catch up and live channels. However, we considered that contradicted rather than clarified the voice-over. Because the ad gave the impression that all Sky 1 content could be viewed, when that was not the case, we concluded it was misleading.
The ad breached BCAP Code rules
Advertisements must not materially mislead or be likely to do so.
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 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration).
The ad must not be broadcast again in its current form. We told British Sky Broadcasting Ltd t/a NOW TV to ensure they did not exaggerate the availability of channel content in future.