A website, www.sky.com, for British Sky Broadcasting, featured text on the page titled "Sky Broadband" that stated "99.9% SKY NETWORK RELIABILITY*". Text on the right side of the ad stated "Super reliable, totally unlimited Sky Broadband Sky Broadband Unlimited has 99.9% core network reliability and we're not stopping there. We're future proofing our network by constantly innovating and investing in the most modern technology to bring our customers even faster Sky Broadband Unlimited. We also monitor your connection to delivery our best speed and stability".
Small print below stated "*Sky's network delivers 99.9% average uptime to your local exchange. Sky's network is part of your overall connection and other factors affect your overall reliability (e.g. home wiring, equipment & websites you visit). Sky Network areas only".
Virgin Media Ltd, who understood that Sky's core network only handled a small proportion of the data flow required to download online content or access a web page, challenged whether the ad misleadingly implied that the reliability of a consumer's complete broadband service was 99.9%.
British Sky Broadcasting Ltd (Sky) said that core networks handled a small proportion of end-to-end delivery when it was measured by distance, but asserted that distance was not the reason that core networks were significant. They explained that core networks were significant because they must carry all of the content that customers requested and it could determine online performance given that they acted as a bottleneck.
Sky stated that the consequences of failure made core networks distinguishable from other elements of the overall network, for example, when a website failed, other services remained available or when a home connection failed, neighbouring Digital Subscriber Line (DSL) would remain unaffected. However, if an internet service provider's network failed, every customer's connection to every website would be affected. They therefore did not consider the proportion of the data flow delivered by the core network would affect the truthfulness of the claim.
Sky said that the ad clearly stated the factors other than Sky's network that would affect customers' overall reliability and did not believe that consumers would overlook this explanation as it was stated in the body of the ad and linked by the asterisks to the main claim. They considered that it was clear from the ad that the main claim was qualified and not categorical, given the qualification was visually and factually prominent, and did not believe that the ad was misleading.
Sky said that they phrased the qualification “other factors affect your overall reliability” in general terms because they considered the fact that their reliability would be affected by several factors would be of more concern to consumers than the details of each of those factors. They said they were willing to clarify the qualification to state that “wiring from your exchange to the home” could affect overall reliability.
The ASA noted Sky's comments regarding the significance of the role of an internet service provider's (ISP) core network within users' overall connection. However, we considered that most consumers were likely to be more concerned with the reliability of their overall or "end-to-end" broadband connection up to the point of their router or the point into their home, rather than the reliability of certain portions of the overall connection, when making a decision to purchase a broadband package with a particular internet service provider.
The headline claim "99.9% Sky network reliability" was prominently placed in the ad, with an asterisk that indicated to consumers that this claim was qualified. Although the explanatory text accompanying the headline claim stated "Sky Broadband Unlimited has 99.9% core network reliability ...", we did not consider that the wording of the qualifying text adequately clarified that the headline claim did not apply to significant parts of the overall connection.
Notwithstanding that the qualification contained the wording "Sky's network is part of your overall connection", we were concerned that consumers would not be aware of the distinction between an internet service provider's core network and users' overall internet connection. We also considered that, given the language used, some consumers would not be aware of the meaning of the wording "average uptime to your local exchange" in respect of Sky's delivery of data.
Further, the examples that would affect overall connection reliability referred to at the end of the qualification only included in-home factors such as home wiring or equipment. The examples did not account for the section from the point of local telephone exchange up to the point the cabling and wiring entered consumers' homes. We understood that Sky did not have control over the reliability of this portion of the connection, which could also have an impact on overall connection reliability. We acknowledged Sky had said that they were willing to amend the qualification to include more details about the factors that could affect the reliability of a user’s overall connection.
For the above reasons, we considered that the presentation of the claim, in conjunction with the wording of the qualification, gave an overall impression that the headline claim "99.9% Sky network reliability" referred to customers' complete broadband service. We therefore concluded the ad was misleading.
The ad breached 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. (Qualification) 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 in its current form again. We told British Sky Broadcasting Ltd to ensure claims based on the reliability rate of their core network were qualified in future ads to make clear the extent of what these claims were based on and any significant factors that would impact on the reliability of consumers' overall internet connection.