Background

Summary of Council decision:

Three issues were investigated, of which two were Upheld an one Not upheld.

Ad description

A direct mailing, a press ad, which appeared in both national and regional publications, an email, a poster, claims on www.bt.com and a TV ad:

a. The direct mailing was headed “The UEFA Champions League has a new home on BT Sport”. Text below included “Your new price will be £5 a month, or it’s FREE when you renew your contract … If you do nothing, your BT Sport Pack will cost £5 a month from 1 August 2015. But you can get it free simply by renewing your BT TV and BT Broadband contract for 18 months”. Small print included “Important things you should know If you want to end your BT Sport subscription, you need to contact us by 31 July 2015”.

b. The press ad was headlined “BT Sport EUROPE Free with BT TV”. Further text included “Our BT Broadband customers can watch BT Sport Europe for free, when they take BT TV which is subscription free for 12 months. Alternatively they can watch on Sky TV for just £5 per month”. Small print included “£35 activation fee for new customers … BT Broadband customers: New TV/broadband contracts required … BT Sport: For existing UK residential BT Broadband customers. New 12/18 month BT Broadband & BT TV contracts required (dependent on your package) … Ongoing BT Broadband/TV contract renewal needed to get discounted BT Sport”.

c. The email had the subject title “Changes to your BT Sport”. Text in the body of the email included “Your new price will be £19.99 a month … If you do nothing, your BT Sport pack will cost £19.99 per month from 1 August 2015 … Please note: the price of your HD subscription is changing to £4 a month from 1 August 2015”.

d. The website stated "Get your BT Sport Pack FREE /mth with BT TV TV PACKAGES FROM £0 £5 /mth with BT Broadband £19.99 /mth without BT Broadband”. Small print shown at the bottom of the page when “BT Sport” was clicked on included “New 12/18 month BT Broadband and BT TV contracts required to get discounted BT Sport (dependent on your packages) New 12/18 month BT Broadband and BT TV contracts required to get discounted BT Sport (dependent on your packages) Discounted prices are available to customers taking BT Sport with BT Broadband or with BT Broadband & BT TV. New 12/18 month BT Broadband and BT TV contracts required to get discounted BT Sport (dependent on your packages)”.

e. The poster was headlined “Watch the UEFA Champions League for free”. Smaller text stated “Every game live, free for our BT TV customers”. Small print included “BT Sport on BT TV requires min. line speed … Free for existing BT TV customers when you re-contract TV and Broadband for 18 months …”.

f. The TV ad featured someone pitching the idea of footballers wearing a zero on the back of their shirts for the latest BT ad. Small on-screen text shown near the beginning of the ad stated “Free for existing BT TV customers when you re-contract TV & BB for 18 months …”. The character, referring to the zero on the shirt, said “… just because that’s how much our BT TV customers will pay to watch the UEFA Champions League on BT Sport”. A voice-over stated, “The UEFA Champions League, free for our BT TV customers”, as on-screen text in the final shot stated the same.

Issue

1. One complainant challenged whether ad (a) was misleading, because he believed it did not make clear that customers could stay on their existing contract and that there was therefore no requirement to take BT Sport.

2. One complainant challenged whether the claim that his new price would be £19.99 in ad (c) was misleading, because it did not include the additional cost of his existing HD package.

3. The rest of the complainants (members of the public and Sky UK Ltd) challenged whether the claims that BT Sport was “free” in ads (b), (d), (e) and (f) were misleading, because consumers were required to either re-contract, or take a new contract, to obtain BT Sport.

Response

1. British Telecommunications plc (BT) said BT Sport was provided to TV customers who opted to take it at no extra cost with a one-month minimum term. It could be cancelled at any time with 30 days’ notice and details of the notice period were provided when consumers bought BT broadband. The letter informed existing BT Sport customers, who had BT broadband and BT TV, about a new channel added to their BT Sport pack and explained that it would cost £5 per month unless they re-contracted. The mailing was sent only to customers who had BT Sport and, as such, it was assumed that they wished to continue to receive it. The ad therefore focused on the ways in which consumers could continue to watch BT Sport. However, text at the bottom of the ad stated that customers who wished to end their BT Sport subscription should contact BT by 31 July. They said the options for BT Sport customers were to pay £5 per month and stay on their existing contract without extending the minimum term, to re-contract BT TV and BT broadband for 12 months and get BT Sport free, or to cancel BT Sport and stay on their existing contract without extending the minimum term. They believed the ad was not misleading, because that was made clear and consumers were made aware of the cancellation period when they took the product. However, they were prepared to increase the prominence of the text that related to cancelling BT Sport.

2. BT pointed out that the additional cost of the HD pack was stated in the body of the email and therefore consumers with HD would be aware that the price was changing. However, they acknowledged that the headline text that stated what the complainant’s new price would be suggested they would pay no more than £19.99. They said they would ensure future ads did not present headline prices in that way, unless they were immediately qualified, where relevant, to make clear the additional cost of the HD pack.

3. They said BT Sport was free with BT TV, on a conditional purchase basis. If consumers took BT TV, they could opt-in and add the BT Sport pack to their package at no additional cost. The product was genuinely separate from BT TV, which many customers took for the same price without adding BT Sport. It was also sold separately to customers that did not have BT TV and watched either via their app or on Sky. They said that in order to take advantage of the free offer, existing BT TV and broadband customers had to commit to re-contract their TV and broadband, and existing broadband customers had to re-contract their broadband and take a TV package. They said while some of the ads referred to an 18-month re-contracting requirement, they should have stated 12 months and that had been corrected shortly after the ads appeared.

The requirement to re-contract was made clear to the existing customers they targeted: either directly below the headline, as in ad (b), at the bottom of the page, in the case of ads (d) and (e), or in on-screen text, as in ad (f). BT said a link labelled “New to BT?” in ad (d) also took consumers to a BT TV product page, one click away, that provided details of relevant BT TV packages and set out the requirements for taking broadband. They believed the ads made clear the costs consumers would be liable for when taking advantage of the free offer, by setting out the requirement to re-contract, but were prepared to consider making that information more prominent, for example by including it above the small print in all ads in the same way as ad (b).

In relation to ad (f), Clearcast said BT Sport was a conditional add-on that did not have to be taken with BT TV. They believed the on-screen text made that clear and that the “free” claims were therefore not misleading.

Assessment

1. Not upheld

The ASA acknowledged that BT were willing to amend the ad. We considered it was likely to be understood by consumers to mean that if they wished to view Champions League games, they would need to renew their BT TV and broadband contract for 18 months or alternatively pay £5 per month. We noted it was not possible to continue to view BT Sport without paying the additional monthly fee or re-contracting and acknowledged the main body of the ad did not state that consumers had the option to cancel their BT Sport pack without the need pay extra or have to extend their contract. However, we noted the ad was sent only to existing BT Sport customers, who we considered were likely to be interested in continuing to receive the sports channels, and that it explained what those customers needed to do to continue to do so. In that context, and given that those customers would also already have been informed about their cancellation rights, we considered the small print “If you want to end your BT Sport subscription, you need to contact us by 31 July 2015” was sufficient to clarify that there was also an option to cancel BT Sport altogether. We therefore concluded that ad (a) was not misleading.

On that point, 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.  and  3.3 3.3 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) and  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification), but did not find it in breach.

2. Upheld

We considered the claim “Your new price will be £19.99 a month” was likely to be understood by the recipient to mean that cost represented their entire monthly subscription. While we noted the ad also included the smaller text “Please note: the price of your HD subscription is changing to £4 a month from 1 August 2015” further down the page, we considered the overall impression of the ad was ambiguous at best and that it could suggest the £4 charge was included in the “Your new price” stated, given that the implication was likely to be that it represented the total monthly price. We acknowledged BT’s willingness to amend the ad but considered that in an ad directly targeted at an individual, and which referred to “Your … price”, immediate qualification was also unlikely to be sufficient to clarify the impression that the price stated represented their own entire monthly cost. We therefore concluded that ad (c) was misleading.

On that point, ad (c) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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) and  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification).

3. Upheld

We again acknowledged that BT were willing to amend the ads. We considered the BT Sport offer was a conditional-purchase promotion, which was separate from and additional to taking BT broadband and TV because those elements could be taken without BT Sport and it was available to purchase separately for consumers that did not have BT TV. Advertisers were able to describe an item as “free” in a conditional-purchase promotion, provided 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 noted the new cost of BT Sport was £5 for existing broadband and TV customers who did not wish to re-contract, but that there was no additional monthly fee for those who re-contracted for BT broadband and TV, or re-contracted for broadband and took a new TV contract. Similarly, we understood that for new customers who wished to take BT Sport in addition to new broadband and TV contracts, the price was the same as for those who opted-out from BT Sport. We therefore considered it was a “free” offer for those customers who opted to take the new or re-contracting options and that the ads must therefore make clear the extent of the commitment consumers must make to take advantage of it.

We considered the headline claim in ad (b), “BT Sport EUROPE Free with BT TV”, was likely to be interpreted as suggesting BT Sport Europe was free for all those who had, or wished to take, BT TV and that the ad was therefore not clearly targeted at existing customers. In addition, the small print included references to new customers. We noted the text immediately below the headline definitively stated “Our BT Broadband customers can watch BT Sport Europe for free, when they take BT TV which is subscription free for 12 months. Alternatively they can watch on Sky TV for just £5 per month”. We considered that was likely to be understood to mean that existing broadband customers who did not already have BT TV could receive BT Sport Europe at no additional monthly cost to the TV service if they took a new TV contract. However, we also considered it suggested that was the extent of the commitment existing broadband customers needed to make to obtain free BT Sport Europe, whereas the smaller print, “BT Broadband customers: New TV/broadband contracts required” and “BT Sport: For existing UK residential BT Broadband customers. New 12/18 month BT Broadband & BT TV contracts required (dependent on your package)”, which introduced the need for those customers to also re-contract for broadband, was not sufficiently prominent to counteract that misleading impression.

In the context of the headline claim, and of the subsequent text relating to existing broadband customers, we considered those consumers who already had BT TV were likely to understand from ad (b) that they could receive BT Sport Europe for free and without the need to make any additional commitment, in particular because there was no further explanation relevant to those customers. However, we noted that this was not the case and that they needed to re-contract for TV and broadband to receive BT Sport without additional charge.

We considered the small print in ad (b) that stated “BT TV: New customers - BT TV from £0 a month for 12 months, then £4 a month. 12 month min term” made clear the commitment new customers had to make to obtain BT TV, and therefore the sport package. However, although it made reference to a minimum line speed, for example, we considered the ad did not make sufficiently clear that a broadband contract was also required, the length of time for which new customers were required to contract to broadband or any additional costs. For the reasons given, we considered ad (b) did not make sufficiently clear the extent of the commitment each of the different categories of consumers needed to make to take advantage of the free offer.

In relation to ad (d), given that text immediately below the claim directed those “new to BT” and those who wanted to “Add BT TV to broadband” to relevant web pages, we considered the claims were likely to be understood to be targeted at both new customers and those who had BT broadband. We considered the primary claim, “Get your BT Sport Pack FREE /mth with BT TV”, suggested those consumers could obtain BT Sport for free but was also likely to be understood to mean that existing customers of BT TV and broadband would be able to do so. We noted the text appeared alongside that stated “£5 /mth with BT Broadband £19.99 /mth without BT Broadband”, but noted that was unrelated to the “free” claim, given that it set out the costs for those wanted to take BT Sport via other routes. We considered the context in which the primary claim appeared suggested there was no qualification to it and that consumers were therefore likely to understand they needed to take only BT TV, or already have BT TV, in order to qualify for free BT Sport.

While we noted that small print included “New 12/18 month BT Broadband and BT TV contracts required to get discounted BT Sport (dependent on your packages)New 12/18 month BT Broadband and BT TV contracts required to get discounted BT Sport (dependent on your packages)New 12/18 month BT Broadband and BT TV contracts required to get discounted BT Sport (dependent on your packages)”, it was not clearly linked to the claim and was visible only if consumers clicked on “BT Sport” after scrolling to the bottom of the page. In any case, because that text introduced the need to make commitments additional to those suggested by the primary claim, we considered it was not sufficiently prominent to counteract the misleading impression that consumers needed to take only BT TV, or already have BT TV, in order to qualify for free BT Sport. In addition, we considered it was not clear whether the small print related to new or existing customers, or both, and that it was ambiguous in relation to the contractual commitments existing customers were required to make. We noted the small print also did not specify any additional costs new customers would incur as a result of taking the required new broadband contract. Similarly, we considered the text that BT referred to that was available to new customers, on a separate page, was also not sufficiently prominent to counteract the misleading impression given by the primary claim. Because it was not the case that consumers needed to take only BT TV, or already have BT TV, in order to qualify for free BT Sport, as suggested by the primary claim, and the additional explanation provided was not sufficiently prominent to counteract that impression, and did not include sufficient information on the extent of the commitment involved, we considered ad (d) also did not make clear the extent of the commitment for each of the different categories consumers needed to make to take advantage of the free offer.

We considered the claims “Watch the UEFA Champions League for free” and “Every game live, free for our BT TV customers” in ad (e) suggested the ad was primarily aimed at existing BT TV customers, but that those who wished to take BT TV were also likely to understand they could receive Champions League games for free if they did so. Again, although we noted that it included reference to a minimum line speed requirement, we considered the ad did not make clear to entirely new customers that they also needed to take BT broadband, the length of time for which they were required to contract to broadband or any additional costs. It was also not clear that existing BT broadband customers would need to re-contract for broadband in addition to taking a TV contract.

However, we considered the small print “Free for existing BT TV customers when you re-contract TV and Broadband for 18 months …” was sufficient to clarify the extent of the commitment existing BT TV and broadband customers needed to make to obtain the free offer. We considered ad (e) did not make clear the extent of the commitment customers who did not previously have BT TV would need to make to take advantage of the free offer.

We considered the claims in ad (f) were also likely to be understood to relate primarily to existing BT TV customers, in particular given that all of the references to the free offer appeared directly in relation to “our BT TV customers”. However, similarly to above, we considered the implication was that consumers who wished to become BT TV customers would also be able to receive the Champions League for free. We acknowledged that on-screen text stated “Free for existing BT TV customers when you re-contract TV & BB for 18 months …”, but were concerned that it was no longer on the screen by the time any “free” claims were made and considered the meaning of “BB” was not likely to be immediately obvious. As such, we considered the on-screen text was not sufficient to make clear the extent of the commitment existing BT TV customers would need to make.

We again considered that despite the on-screen reference to a minimum line speed requirement, ad (f) did not make clear to entirely new customers that they also needed to have BT broadband, the length of time for which they were required to contract to broadband or any additional costs.

In addition it was not clear that existing BT broadband customers would need to re-contract for broadband in addition to taking a TV contract. For those reasons, we also considered ad (f) did not make the clear extent of the commitment each of the different categories of consumers needed to make to take advantage of the free offer.

Because, aside from in relation to existing BT TV and broadband customers in ad (e), the ads did not make sufficiently clear the extent of the commitment consumers would need to make to take advantage of the free offer, we concluded that they were misleading.

On that point, ads (b), (d) and (e) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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.  (Qualification) and  3.2 3.2 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.
  (Free). Ad (f) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 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.  (Qualification) and  3.25 3.25 Advertisements must make clear the extent of the commitment consumers must make to take advantage of a "free" offer.
Advertisements must not describe items as "free" if:
 (Free).

Action

Ads (b), (c), (d), (e) and (f) must not appear again in their current form. We told British Telecommunications plc to ensure their future ads made clear the extent of the commitment consumers must make to take advantage of a free offer and that price claims were not misleading, and were not contradicted.

BCAP Code

3.1     3.10     3.2     3.25    

CAP Code (Edition 12)

3.1     3.23     3.3     3.9    


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