A TV ad and a poster ad for Sky Mobile, seen in November 2021:
a. The TV ad showed people dancing at a wedding. A woman speaking to camera said, “Wouldn’t it be nice to capture perfect moments with the iPhone 13 on Sky Mobile.” She later said, “Discover a world of possibilities. Get the perfect iPhone 13 on the perfect network. Sky mobile. Hello possible.”
b. The poster ad, seen on the London Underground, featured text which stated “sky mobile The perfect new iPhone 13 on the perfect network”.
IssueBritish Telecommunications plc challenged whether the claim “the perfect network” was misleading and could be substantiated.
Sky UK Ltd t/a Sky Mobile (Sky) said they did not intend the claim “the perfect network” to be an objective or superiority claim about network capabilities or performance. They therefore did not believe that the claim required objective substantiation.In their opinion, consumers would not expect any mobile network to be without faults. They believed “perfect” would mean something different to everyone. They believed that consumers would have understood the claim as they intended; with a degree of puffery and that it was Sky’s own opinion of their network – based on their features, value for money and customer service.
They said the advert should be viewed as a whole and the meaning of “perfect” should not be viewed in isolation. The TV ad depicted a fanciful and idyllic wedding scene where the perfect situation existed only in the imagination. It was not likely to be a realistic situation. When the claim was viewed as a whole, they believed consumers would not have taken it literally. Instead it was tongue-in-cheek, as consumers would not expect any mobile network to be completely fault free, just as they would not expect a child to be able to do a high back flip, as was shown in the ad.
Although they did not consider the claim to be an objective one, they believed they could nonetheless demonstrate it was the perfect network through evidence of Sky’s awards, and referenced the Uswitch Best Value Pay Monthly 2021, Uswitch Best Pay Monthly Network 2021 and the Mobile news awards best MVNO in 2020.
In their opinion, there was a clear distinction between the use of “perfect” and “best” in claims. “Perfect” would mean something different to every individual given a unique set of circumstances and events particular to that individual. In contrast, “best” would have measured a distinct characteristic and comparable feature of a product or service, and therefore required substantiation. They provided a report from RadioCentre who had approved a similar claim being made in Sky’s radio ad.
They said the claim was not a comparative one as they did not reference any aspect of the service on speeds, capability or identify any competitors. They believed that consumers would not have interpreted it as a comparative claim, given that they had not received any consumer complaints about these ads or any other ads that used the claim.
Clearcast, responding in relation to ad (a), said, in their opinion, the word “perfect” was highly subjective and was not a word that would likely be understood by consumers as being an objective claim about the benefits of Sky Mobile. Because they considered it was a subjective claim, they did not expect Sky to provide evidence to substantiate the claim.
They said that the ad did not make any comparison with other mobile networks nor claim to offer things that competitor networks did not. In the absence of a comparison, competitor networks were not precluded from also referring to themselves as “perfect” since it was possible that more than one, if not all networks, were perfect. Therefore, they did not consider that the claim was a comparative claim that needed to be verifiable.
They believed consumers would have made up their own minds on whether the combination of the iPhone 13 on Sky Mobile was “perfect” or not. Consumers may have disagreed that either the iPhone 13 or Sky Mobile as a network was perfect, but that they were free to do so, and it was simply Sky’s proposition.
They said that other advertisers had used “perfect” in the past to refer to their products and services, and they understood that the use of the word was likely to have been taken as puffery rather than an objective truth that could or could not be substantiated.
Ads (a) and (b) stated “the perfect network”. We acknowledged that, in isolation, “perfect” would generally be understood to mean fault free. In the context of an ad for a mobile network provider, we considered that consumers would not take it completely literally, because they would not expect any mobile network to be completely fault free. Nonetheless in the context of the claim being used in reference to “network”, we considered consumers would understand the claim to be an objective one, and, as it was not qualified, they would understand it as a claim that Sky Mobile performed to a very high standard across a range of all or nearly all factors related to their network. Those included having, for example, uninterrupted coverage, exemplary call quality, very fast speeds and no customer dissatisfaction. In their response Sky had referenced various awards, although they had chosen not to provide evidence in relation to those. They had not been referenced in the ads and so were not a factor impacting on how consumers interpreted the claims. We therefore expected Sky to hold evidence to substantiate that a broad range of elements of their service consistently performed to a very high standard.
Further, because the ads claimed that Sky Mobile was “the perfect network” and not “a perfect network”, we considered that consumers would understand the claim to mean that Sky Mobile was the only network which could be described as “perfect”. We therefore considered that the claim was also a comparative claim that meant not only that Sky Mobile performed to a very high standard across a broad range of elements of their network, but that they performed better than all other mobile network providers, and that they had objective evidence to support that. The CAP and BCAP Codes required that comparisons with identifiable competitors must objectively compare one or more material, relevant, verifiable and representative features of those products. As such, we expected to see evidence that a range of networks had been evaluated based on a robustly conducted comparison of the same elements of their service and that Sky Mobile had received the highest score of all the rated networks.
Sky had explained that they considered the claim was subjective and based on their own opinion of their network. On that basis, Sky did not provide objective evidence. Therefore, we concluded that the claim had not been substantiated and was likely to mislead.
On that point, ad (a) breached BCAP Code rules
Advertisements must not materially mislead or be likely to do so.
Standards set by Ofcom to secure the objectives [mentioned in 3(a), (h) and (i) above]:
a) must include general provision governing standards and practice in advertising and in the sponsoring of programmes; and
b) may include provision prohibiting advertisements and forms of methods of advertising or sponsorship (whether generally or in particular circumstances)."
Section 3.1 3.1 The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2). 1).
[NB: "Programme" includes an advertisement Section 405(1)] (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), 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. and 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. (Comparisons with Identifiable Competitors).
On that point, ad (b) breached CAP Code (Edition 12) rules
Advertisements must not materially mislead or be likely to do so.
Advertisements must not mislead by omitting the identity of the advertiser.
Advertisers should note the law requires advertisers to identify themselves in some advertisements. Advertisers should take legal advice. (Misleading advertising), 3.7 3.7 Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context. (Substantiation), 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. and 3.35 3.35 Advertisements must objectively compare one or more material, relevant, verifiable and representative feature of those products or services, which may include price. (Comparisons with Identifiable Competitors).
The ads must not appear again in the form complained about. We told Sky UK Ltd t/a Sky Mobile not to make claims that Sky Mobile was the perfect network unless they held objective comparative evidence to substantiate the claim as it would be understood by consumers.