A comparison table on www.aolbroadband.co.uk compared AOL, TalkTalk and BT broadband, calls and line rental packages and claimed that AOL and TalkTalks' packages were cheaper than BT's.
BT challenged whether the price and feature comparison was misleading and could be substantiated, because they believed it omitted several key features of BT's package.
TalkTalk Telecom t/a AOL Broadband believed the difference between the router supplied by AOL Broadband and the one supplied by BT (one of the features BT believed the ad needed to state) was not likely to influence consumers' evaluation of the comparison. AOL Broadband considered the description "Smart Wireless 2 Dual Band Technology" and the reference to switching across two signal bands (2.4 GHz and 5 GHz), was not language commonly used in the home broadband market; that consumers were unlikely to understand it; and that, as a consequence, it was not a feature likely to influence consumers' evaluation and did not need to be stated in the ad.
Regarding SmartTalk (another feature BT believed the ad needed to state), which allowed customers to use their BT home phone calling plan from their mobile phone, AOL Broadband said a large number of apps provided similar services for calls at no or heavily discounted costs. They said BT customers paid for the feature as an element of their BT package, which they believed was a similar situation to customers of other providers who accessed apps at no charge and then made calls from their inclusive allowance on their mobile phone package. AOL Broadband accepted there was an easing of administration for the BT customer in that the feature was managed through a single account, but because it was possible for customers of other providers to access similar features from apps at no charge, the inclusion of the feature was nevertheless not likely to influence consumers' evaluation and therefore did not need to be stated in the ad.
Regarding BT Sport (another feature BT believed the ad needed to state), AOL Broadband said that, now that the channel had launched, they were willing to include a reference in the comparison footnote text to state that BT's package included access to the TV channel BT Sport.
The ASA noted that BT's router incorporated relatively recent technology which had been developed as an advance on the technology used in routers such as the one used by AOL Broadband, as a result of additional radio spectrum being made available. We agreed that the significance of the difference in technical specification between the routers might not in itself be understood immediately by many readers, but considered, nevertheless, that the router functioned differently in that it had been developed to use the additional radio spectrum with the intention of providing a wireless signal in the home that was less prone to interference and more reliable than the technology which preceded it. We considered that was likely to be of interest to consumers and that the difference should have been stated in the ad in a way that would be meaningful for most readers.
Regarding SmartTalk, we understood that customers of other home broadband and call package providers could make calls from their mobile phone by using the call allowances that came with their mobile phone contract, which could be with a separate provider. We considered, however, that SmartTalk functioned differently in that the feature was included in the customer's home BT broadband and call package and meant that they would use their home phone calling plan (and the allowances that were included in it) from their mobile phone, meaning that they would not be using their Pay as You Go credit or inclusive mobile minutes. We considered that was a significant feature, likely to influence their decision, and that it therefore needed to be stated in the ad.
Regarding BT Sport, we noted that AOL Broadband had previously been willing to consider stating in their advertising from 1 August onwards that BT's package included access to the TV channel BT Sport (access to the channel began on 1 August for BT customers). We welcomed their willingness to consider the amendment, but noted that the point at issue was whether the ad should have referred to the feature when the ad first appeared in May 2013, in advance of the 1 August start date for access to BT Sport. Given the shorter period of time between May and the 1 August access date in comparison with the length of contract (a minimum of 18 months) that customers would be signing up to with AOL Broadband, we considered that future access to BT Sport was a significant feature, likely to influence a consumer's decision, and that it needed to be stated in the ad from the outset.
Because the ad had not stated several key features of BT's package, which we considered would influence customers' decision in the comparison with AOL Broadband ‒ the difference between the routers, the inclusion of BT SmartTalk and access to the TV channel BT Sport from 1 August ‒ we concluded that 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), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors) and 3.39 3.39 Marketing communications that include a price comparison must make the basis of the comparison clear.
CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises. (Price comparisons).
The ad must not appear again in its current form. We told AOL Broadband to ensure the basis of comparison was made clear in future.