Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one was Upheld.
A national press ad and a page on the BT Sport website:
a. The national press ad stated "BT Sport brings you 38 exclusively live Barclays Premier League matches this season … Kicks off 16 August … Still free with BT Broadband … Call [telephone number] [website] …".
b. The web page stated "Still free with BT Broadband £12 a month on the Sky Digital Satellite Platform … Get BT Sport on Sky for £12 a month or free for existing BT Broadband customers". Text at the foot of the page, available to view by scrolling down and opening a link labelled "The legal stuff" stated "… BT Sport is also available on the Sky Digital Platform for all new and existing BT broadband customers who sign up for 12 months or have 12 months remaining on their contract; ongoing renewal needed to get discounted BT Sport. Sky box and active viewing card required. If you don't have BT Broadband you'll need to pay £12 a month (rising to £13.50 a month on 01/09/14) plus a one off £15 fee … Terms apply".
British Sky Broadcasting Ltd (Sky) challenged whether:
1. the claims "Still free with BT Broadband" in ad (a) and "free for existing BT Broadband customers" in ad (b) were misleading, because they understood that existing customers who had been BT Broadband customers for a longer time than required by their minimum contract terms had to pay £12 a month (rising to £13.50 a month) for BT Sport or renew their contract for BT Broadband at the end of their existing term; and
2. ad (b) was misleading, because it failed to make sufficiently clear that the cost of BT Sport on the Sky Digital Satellite Platform was due to rise from £12 to £13.50.
1. BT explained that BT Sport was free with BT Broadband. All BT Broadband customers could watch BT Sport online or via the BT Sport app for free, whether they were new or existing customers. In addition, BT Broadband customers who had a Sky box and active viewing card could watch BT Sport for free on the Sky platform and existing BT Broadband customers who had BT TV and a BT Infinity broadband subscription could watch BT Sport on BT TV. In both of those latter examples, customers were not required to pay anything in addition to their broadband subscription, providing that they had 12 months of their minimum term remaining. They explained that the only customers who were required to enter into a 12-month minimum term were in a sub-category, those who, in addition to viewing BT Sport online and on an app, wanted to view BT Sport on BT TV or their Sky box and who had fewer than 12 months remaining on their minimum term.
BT pointed out that the CAP Code stated that "marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a "free" offer. Because BT Sport was free with BT Broadband, and the only group of customers who had a re-contracting requirement were existing BT Broadband customers who wanted to watch BT Sport on their Sky box or on BT TV and had fewer than 12 months remaining on their contract, BT believed it was acceptable to include reference to that commitment in a footnote. The requirement was stated in footnote text in ad (a) and in a prominent disclaimer under the heading "The legal stuff" at the foot of ad (b).
2. BT explained that it was their policy to use the price that was due to be introduced for up to one month before that price would apply and for the preceding month to explain the forthcoming price rise in a footnote. They said BT Sport was available with a one-month minimum term and, although they agreed that the price rise information was material information that needed to be included in ads, believed it did not require the same degree of prominence as it would when applied to a product with a longer minimum term of, for example, 12 months. The consumer's transactional decision was different, because the commitment required from them was not the same.
1. Not upheld
The ASA understood that BT Sport was free for BT Broadband customers who watched BT Sport online, via the BT Sport app, through the Sky platform or on BT TV. BT Broadband customers were able to access BT Sport online or via the BT app regardless of the amount of time remaining on their contract or if their minimum term had expired. BT Broadband customers who wished to watch BT Sport on the Sky platform or on BT TV needed to have a minimum of 12 months remaining on their broadband contract, or renew to ensure that the period of time remaining on their contract was more than 12 months.
We noted ad (a) stated "Still free with BT Broadband" in body copy and that footnote text explained the speed requirements for broadband customers to access the BT Sport service. It also stated "BT Sport is also available on the Sky Digital Satellite Platform or BT TV with Infinity for new and existing broadband customers who sign up for 12 months or have 12 months remaining on their contract". Ad (b) stated "Still free with BT Broadband" and "Get BT Sport on Sky for £12 a month or free for existing BT Broadband customers". The requirement for BT Broadband customers to have a minimum of 12 months on their contract to view BT Sport through the Sky platform was stated under the heading "The legal stuff" at the foot of the page.
We considered that significant information in relation to the limitations of each of the platforms advertised should be given. We noted, in both ads footnote text indicated that customers needed to have a minimum term of 12 months remaining on their contract to receive BT Sport free via the Sky Satellite Digital Platform or BT TV. Because BT Sport was free to BT Broadband customers, and the footnote text provided explained the requirement for those who wanted to watch via Sky or BT TV to have a minimum of 12 months remaining on their contract, we considered that the claim "Still free with BT Broadband" in both ads was unlikely to mislead.
On this point, we investigated ads (a) and (b) under CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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. and 3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualifications) 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), but did not find them in breach.
BT had confirmed to Sky that an incorrect date for the forthcoming price increase had been stated in the ad; the price rise was due to take effect on 1 October 2014, not 1 September 2014, and this had been corrected upon notification of the mistake. We noted BT's view was that, because BT Sport on the Sky platform was available with a one-month minimum term, it was acceptable to make reference to the forthcoming price rise in a footnote, given that the rise was more than two months ahead.
The imminence of the price rise was material information for all customers. In addition, we noted there may be additional set-up costs involved for those who were not BT Broadband customers. We acknowledged that customers were able to cancel their BT Sport contract with 30 days' notice, but also understood that information relating to the forthcoming price rise was only given in footnote text under the heading "The legal stuff" up to one month before the new price was introduced. Considering the potential financial implications and the cancellation requirement for those who did not wish to accept the price increase, we considered that it should be made clear in ads, after a price rise had been confirmed, that it was forthcoming.
To ensure that consumers were aware of all the material information they needed to make an informed decision about whether to take up a BT Sport subscription, the forthcoming price rise should have been given more prominence, by being, for example, linked to price claims in the ad, or stated within the body copy.
On this point, the ad breached CAP Code rules
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising) and
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification. (Qualifications).
We told British Telecommunications plc to ensure that future ads promoting BT Sport subscription services give sufficient prominence to any confirmed forthcoming price rise.