A regional press and TV ad promoted a Sky offer.
a. The press ad stated "SKY SPORTS BIG IDEAS 2 YEARS FREE SKY BROADBAND UNLIMITED SKY LINE RENTAL REQUIRED £15.40 A MONTH AND A NEW EUROPEAN FOOTBALL CHANNEL SKY SPORTS 5 FOR OUR SKY SPORTS CUSTOMERS ...". Footnote text at the bottom of the ad stated "... New minimum term required for Sky Broadband Unlimited, calls and line rental - 12 months for new and 18 months for existing Sky Broadband customers ... 2 years free offer: You must activate Sky Sports 5 and keep Sky TV and Sky Sports (currently from £43.50pm) for 2 year offer period, otherwise you'll be charged for Sky Broadband Unlimited (currently £7.50 for Sky TV and Talk customers). Prices may go up during offer period ...".
b. The TV ad included a voice-over which stated, "In our bid to make Sky Sports even better, we enlisted the help of the ultimate hero of sport. No not him, him. There were some interesting ideas; drone cam, sofa ref, the sensational suit." On-screen text stated "Sky Network areas only. Router delivery charge (£6.96). New min term contract & further terms apply". The voice-over then stated, "In the end, the simplest idea was also the best. A new European football channel, and that's not all. 2 years free Sky Broadband Unlimited for our Sky Sports customers", whilst on-screen text stated "Sky Talk & Line rental required from £15.40pm".
BT challenged whether the references to "free" in ads (a) and (b) were misleading, because existing customers were required to re-contract on an extended 18-month minimum term, which had not been offered previously.
1. & 2. British Sky Broadcasting Ltd (BSkyB) explained, that as stated in the ads, to be eligible for the offer existing Broadband Unlimited customers had to agree to maintain Sky Talk and Sky Line rental subscriptions for at least 18 months, and continue to receive Sky TV with Sky Sports, Broadband Unlimited, and Sky Talk and line rental for two years. They believed both ads were transparent and made clear the nature of the offer, the corresponding costs and the commitment required. They said consumers paid the same established monthly price for the required services whether or not they took up the offer, and irrespective of how long they remained a customer, so regardless of whether an existing customer signed up for the offer, they would pay £46.00 a month for Sky TV with Sky Sports, £15.40 a month for Sky line rental, and £0.00 for Sky Talk Weekends. However, existing customers who did not wish to sign up for the "free" offer, would pay £7.50 a month for Sky Broadband Unlimited if they had Sky TV, and £10.00 without Sky TV. They also stated that consumers received identical services with or without the offer.
BSkyB also asserted that all of the service elements (Sky TV, Sky Talk and Sky Line Rental) were available without Sky Broadband Unlimited and were subject to separate subscription contracts, and had genuine stand-alone prices. They also stated that a high number of Sky customers currently received Sky TV with Sky Sports within an 18-month minimum contract for their Sky Broadband Unlimited, Sky Talk and line rental services without the "free" offer, under other promotions. Therefore they asserted that customers received the relevant services from Sky on the same terms without the "free" offer.
They did not accept that they had increased the cost that existing customers had to pay for the two-year offer by specifying that existing customers had to take the relevant Sky services for a minimum of 18 months. Instead they believed that the requirement to subscribe for at least 18 months and remain a subscriber throughout the offer was the extent of the commitment customers had to make to take advantage of the offer. They also highlighted that the standard monthly prices that customers would expect to pay were stated in the ads and had not been increased. Finally, they highlighted that the minimum term was less than the extent of the commitment, whether as a new or an existing customer, needed to make to take advantage of the offer because receiving all of the conditional purchase items throughout the offer was an eligibility requirement and, therefore, did not increase the cost existing customers had to pay to receive two years free broadband from Sky.
Clearcast, responding in relation to ad (b), stated that the ad made clear you needed to be a Sky Sports customer in order to take up the free broadband claim. They said the legal supers indicated the material conditions of the offer which were that customers had to be in the Sky Network area, there was a charge of £6.95 for router delivery, a new minimum term contract applied, as well as further conditions, and a further charge for Sky Talk and line rental was required at £15.40 per month. Both the voice-over and the text directed viewers to a website where the full terms and conditions were available to view. Clearcast also provided copies of substantiation from the agency. They believed that the material terms of the free offer were very clearly stated in the ad and access to the full terms clearly indicated. Therefore, they believed the ad was neither misleading nor the claims exaggerated.
1. & 2. Not upheld
The ASA considered that Sky's Broadband Unlimited offer was a conditional-purchase promotion. The CAP Code allowed an item to be described as "free" in a conditional-purchase promotion, as long as customers were aware of all the costs they were liable for, the quality or composition of the paid-for items had not been reduced and the price of the paid-for items had not been increased to recover the cost of the "free" item.
We understood that in order to be eligible for the offer, an existing Sky Broadband Unlimited and Sky TV customer would need to remain a Sky Broadband Unlimited, Sky Talk, Line Rental and Sky TV with Sky Sports customer for the offer period (two years), and activate Sky Sports 5, and that they had to re-contract for their Broadband service, Sky Talk and Line Rental services for a minimum 18-month term.
We noted BT's belief that, because, to take advantage of the offer, an existing customer needed to re-contract on an 18-month minimum term, whereas a new customer was required to contract for 12 months, the price of the contract had effectively been increased. We noted, however, that each element of the offer (Sky Broadband Unlimited, Sky TV, Sky Talk and Sky Line Rental) had an established stand-alone monthly price, which was the same for both new and existing customers and, with the exception of Sky Broadband Unlimited, which was available for free for eligible customers, would remain the same for those taking up the offer, and those who didn't. We understood that the monthly cost of Sky TV with Sky Sports, Sky Talk and Line Rental would cost the same for an existing customer taking up the offer, to the price they would have been paying before the offer, but they would no longer pay a monthly fee for Sky Broadband Unlimited. While we acknowledged that there was a difference between the minimum term required for existing and new customers, we considered that they were effectively two different offers running simultaneously, each with its own unique terms. Therefore, although the extent of the commitment an existing customer would need to make to take advantage of the offer was greater than for a new customer, given that the monthly cost of the paid-for items had not been increased as a result of the offer and customers would continue to receive the relevant services from Sky throughout the contract period, we did not consider that the terms had been changed to recover the cost of the "free" broadband. Therefore, we concluded that the references to "free" in both ads (a) and (b) were not misleading.
We investigated ad (a) under CAP Code (Edition 12) rules 3.1 3.1 Advertisements 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), 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration), and 3.24.2 3.24.2 the cost of response, including the price of a product that the consumer must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion, or (Free), but did not find it in breach.
We investigated ad (b) under BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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), 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration), and 3.25.2 3.25.2 the cost of response, including the price of a product or service that consumers must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion (Free), but did not find it in breach.
No further action necessary.