A TV ad for a telecommunications company featured a voice-over that stated, "Everybody likes a sale. But at TalkTalk we believe in saving all year round. Your free YouView box comes with Freeview channels and Catch-Up TV, plus totally unlimited broadband, and unlimited evening and weekend calls, for just £7.50 a month plus £15.40 monthly line rental. YouView gives you over 70 freeview channels, and you can watch Catch-Up TV on your TV. YouView also lets you scroll back to see shows you've missed from the last seven day s…"
During the ad, content from a BBC programme and the logos of BBC iPlayer, ITV Player, 4OD, and Demand 5 were shown, along with the on-screen text that stated "… Catch up available for certain channels only". The ad also featured a TV screen, showing a list of channels with a pop-up calendar moving back in time; from "Fri 16 to Wed 14".
Two complainants challenged whether the ad was misleading, because it implied that all of the content on the catch up services referred to were accessible, which they understood was not the case.
TalkTalk commented that the ad featured the logos of the channels for which a catch up service was provided (BBC iPlayer, ITV Player, 4OD, and Demand 5), which was further clarified by the on-screen qualification. They did not believe that the ad made any claim regarding the extent of the content available on those catch up services. TalkTalk stated that they promoted the catch up services on their merits as services rather than making any claims about the content on them.
TalkTalk stated that they avoided making claims about the content available on various services, since they had limited control over the availability of content in general. Furthermore, they highlighted that the ad featured a TV screen, showing a list of channels with a pop-up calendar moving back in time, which illustrated how YouView's electronic programme guide (EPG) listing worked. They believed that this did not imply that all the content on the services shown were available on their catch up service, but illustrated that YouView had the ability to go backwards on its EPG.
Clearcast stated that the lines, "YouView gives you over 70 freeview channels" and "YouView also lets you scroll back to see shows you've missed from the last seven days", did not imply that consumers could watch all programmes on TalkTalk's catch up service. They commented that the ad did not state consumers could watch all programmes or every programme they missed. As such, Clearcast did not think viewers would be misled as to what they would receive, and without the use of words such as, all or every show, they did not feel the ad exaggerated what consumers would receive from the service. They highlighted that the ad demonstrated that the catch up service would provide consumers with a timetable of what was available, and by using that part of the service they'd be able to see which programmes they were able to revisit. Therefore, Clearcast considered that the ad clearly illustrated what functions were available on TalkTalk's catch up service.
The ASA noted that TalkTalk believed that the ad made sufficiently clear that their catch up service was available for certain channels, having only featured the logos in the ad and acknowledged that TalkTalk and Clearcast considered that at no point did the ad state or suggest that consumers could watch any programme on the catch up services referred to. We also noted the on-screen qualification, which stated "Catch up available for certain channels only".
However, we noted that the voice-over stated "You can watch Catch-Up TV on your TV" and "YouView also lets you scroll back to shows you've missed from the last seven days …" and that the ad included the logos of BBC iPlayer, ITV Player, 4OD, and Demand 5 and a list of channels, including BBC1, BBC2, ITV, Channel 4, Channel 5 and ITV2, on the service's EPG. We considered that the imagery along with the voice-over suggested that the advertised service included all of the catch up content of the on-demand services referred to. Because this was not the case and some catch up content was excluded from the on-demand services included in the advertiser service, we concluded that the ad was misleading.
The ad breached BCAP Code rules
Advertisements must not materially mislead or be likely to do so.
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. 3.3.1 3.3.1 the main characteristics of the product or service (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 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration).
The ad must not appear again in its current form. We told TalkTalk that their future advertising must make clear that some catch up content is excluded from the on demand services accessible through their service.