A press ad for Sky broadband, seen in May 2015, stated "Fastest peak time speeds measured by Ofcom". Text underneath stated "For speeds up to 38Mb". Small print at the bottom of the ad stated "... Fastest peak time speeds: measured by Ofcom comparing Sky, BT, Plusnet and EE's up to 38Mb in its latest UK fixed-line broadband performance report (November 2014) ...".
BT challenged whether the "Fastest peak time speeds measured by Ofcom" claim was misleading, because the Ofcom report the claim was based on had not taken into account Wi-Fi performance and because the Fibre to the Cabinet (FTTC) data used in the report had not been 'normalised' to take into account the distance from the exchange.
Sky did not believe the claim was misleading. They said it factually reported Ofcom's findings and did not infer wider performance claims requiring further substantiation. They said that Ofcom's reporting methodology was established to enable consumers and industry stakeholders to make like-for-like comparisons in relation to broadband speeds. They understood that Ofcom measured that by connecting to panellists' routers using an ethernet cable in order that the results accurately reflected the performance of their connections. They explained that Wi-Fi performance varied widely with home environment and they understood that Ofcom excluded Wi-Fi performance to ensure that its testing accurately reflected the service performance and not the performance of the home environment. They believed Ofcom's approach enabled useful like-for-like comparisons that were objectively verifiable and that this would not be possible were it to include Wi-Fi performance.
Although they believed consumers would understand that the claim related to fixed-line broadband performance, Sky provided a testing report which compared wireless performance data of its own router compared to those of other internet service providers. They believed it showed that their router delivered sufficient bandwidth to support an up to 38 Mb connection, and outperformed over distance their competitors' routers. Therefore, the data showed that Wi-Fi performance was unlikely to have any material impact on consumers' understanding of the claim.
In relation to the point that the FTTC data used in the report had not been 'normalised' to take into account the distance from the exchange, Sky said they had confidence in Ofcom's reporting methodology, which was carefully considered and had evolved with independent statistical advice for over six years. They pointed out that Ofcom expressly considered FTTC normalisation on page 16 of its report, and provided a considered view that it was not appropriate, at the current time, to normalise its FTTC data (but it would be kept under review). Sky said Ofcom and its supplier were world leaders in broadband speed testing and their methodology was being rolled out to other industry regulators internationally. They believed that with that context, experience and expertise, consumers were unlikely to be misled by Ofcom's reporting methodology on both grounds of complaint. Sky believed it would be highly unusual to prevent advertisers from factually reporting on a consumer report issued by an industry regulator to enable objective comparisons.
Notwithstanding that Sky believed the ad was already compliant with the Code, they amended the footnote qualification to include text stating "Ofcom excludes Wi-Fi performance, which varies by device, home environment and ISP", which they believed made the ad clear beyond doubt.
The ASA noted that the headline claim referred explicitly to Ofcom, the UK regulator of communications, as the source of the data on which the comparison was made. We understood that the report on which the claim was based related to fixed-line performance only and that the report showed that Sky's broadband had faster download and upload speeds during peak times than other internet service providers' broadband (up to 38 Mb).
We understood that the data on which Ofcom's report was based had not been 'normalised' to account for distance of the user from the exchange. We further understood that Ofcom had addressed the issue of normalising data in its report and had explained why, at that time, it had decided not to do so. We considered that consumers would understand that the "fastest speeds" claim was based on an Ofcom report and that while consumers were unlikely to know how the testing had been carried out, they would expect that it had been conducted in accordance with an appropriate standardised methodology. We considered that consumers were unlikely to be influenced by the details of the metrics used by Ofcom and were more likely to be influenced by the scope of the report and the actual findings. Consumers, therefore, would understand that the claim reflected the findings of the relevant Ofcom report, and also because the latest Ofcom UK fixed-line broadband performance report demonstrated that Sky's service was the fastest during peak times, we considered the claim was unlikely to mislead consumers on that basis.
We understood that the scope of the report was in relation to fixed-line broadband performance and that the data did not include Wi-Fi performance. We noted that the ad did not include any explicit claims about the speed of Sky's Wi-Fi, but we considered that because many people used Wi-Fi in their homes, consumers were likely to interpret "fastest peak-time speeds" to mean the speeds they would receive in the home environment, including when they were using their devices wirelessly. We also noted that the ad referred to Wi-Fi where it stated "Simple to set up. Includes our best ever Sky Hub that's a doddle to set up yourself", which enhanced that impression. As stated above, however, we understood that Ofcom's findings were in relation to fixed-line broadband performance only and whilst we noted the footnote, which referred to "fixed-line broadband performance", we considered it was not sufficiently prominent and did not make sufficiently clear that Wi-Fi performance was not included in the analysis. We noted Sky's amendment to the ad, however, we considered that the new text was not sufficiently prominent to counter the misleading impression created by the headline claim.
We considered the report on wireless performance submitted by Sky. We noted that the testing had been carried out 18 months' previously and we were concerned that some of the routers tested had, in the intervening period, been replaced by newer models. We were also concerned that Sky's router had been compared with the routers of only three of its competitors and there were two notable competitors (which had been included in the Ofcom report) that were not included in the testing. Furthermore, the focus of the report was on the reach of the products and measured the signal range from the router to the device and signal strength rather than speed. We also noted that a significantly larger number of tests had been carried out for Sky's router than for those of its competitors and considered that could have had a bearing on the performance averages reported in the document. For those reasons, we considered that Sky had not adequately shown that its router performed better in terms of speed than those of its competitors.
Because the ad did not make clear that the "fastest peak time speeds" claim related to fixed-line broadband performance only, and therefore did not include Wi-Fi performance, we concluded that the claim 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 again in its current form. We told Sky UK Ltd to ensure that in future they made clear that speed claims related to fixed-line performance only, if that was the case.