Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A TV ad for Virgin Media shown on 29 September 2024. The ad showed a walrus, facing the camera, on a speedboat going through the water, while soft music played. The voice-over stated, “With Virgin Media get smooth lightning fast M125 broadband.” The word “Smoooooth” appeared on-screen just above the walrus, that was then shown turning to the right in the boat and leaving a trail of multicoloured light behind it. The light was then shown preceding the speedboat and the walrus in the boat was shown slowly passing from left to right of the screen. The voice-over said, “Just £26 a month and no set up fee.” On-screen text above the boat stated, “£26 a month 18-month contract £0 setup fee…”. The boat sailed off to the right. The voice-over stated, “All on the provider awarded best broadband experience. Yes that’s smooth.” On-screen text stated, “Awarded Best Broadband Experience”. Superimposed text at the bottom of the screen throughout referred to the award “GWS network award comparing major UK providers’ average performance scores (including speed & reliability). To verify, see virginmedia.com/legalawards. User speed depends on package choice”. The voice-over and on-screen text stated, “Virgin Media. See what you can do.”
Issue
BT Group challenged whether the claim “Awarded Best Broadband Experience” was:
- misleading and could be substantiated; and
- verifiable.
Response
1. Virgin Media Ltd said that the ad was not misleading because it accurately described an independently adjudicated award they had won. They said that the Global Wireless Solutions (GWS) award for Best Broadband Experience came from tests comparing major providers’ performance over a six-month period (December 2023 to May 2024). The tests used actual end user experience to the consumer’s device (not just up to the router), so both the fixed line performance and the internet service provider’s (ISP) wireless router performance were considered in the results. The results came from 5,000 UK consumers in their homes who were tested at random times, seven days a week over the six-month period. The metrics that were measured, and were included in the verification document, were network available and network delivered download throughput speeds, network available upload throughput speeds, latency, reliability, packet loss, video resolution, video freezing and video loading. The results were weighted to determine ISP scores. Virgin Media’s overall score was the highest and as such won the award.
They said based on the testing, which was extensive and large in scale, the claim “Awarded Best Broadband Experience” was not misleading and had been substantiated. They said “smooth” was used in the ad to refer to the feeling of great broadband experience and linked to the use of a smooth and soulful walrus in the ad. They said “smooth” was not a technical term and could not be attributed to a specific element of broadband performance. They believed consumers would interpret the use of “smooth” as a reference that their broadband would provide a fast and reliable service which meant consumers would use their product to perform online activities without difficulties. They said that “smooth” was not a superlative term and disagreed with BT Group that its use, along with the claim “Awarded Best Broadband Experience”, implied that Virgin Media outperformed their competitors on all individual aspects of broadband experience, including latency, jitter, packet loss and consistency of speed. They said the ad did not make that claim and the average consumer would not understand it in such a technical way.
They said consumers would understand “Awarded Best Broadband Experience” to be a comparison across a broad range of performance metrics, with Virgin Media coming first overall and not that to win the award they would have to come first in all nine categories. They said that was consistent with the GWS report which ranked the best overall performer. They said the qualification in the ad supported that interpretation when it stated, “GWS network award comparing major UK providers’ average performance scores (including speed and reliability). To verify see virginmedia.com/legalawards”.
They explained that the weighting used by GWS was fair, robust and appropriate. GWS polled their UK consumers to determine what aspects of broadband performance were important to them. They then used the poll results to establish weights for the technical metrics. They said it was reasonable and common practice to apply weightings when assessing multiple technical aspects that contributed to overall performance, as some aspects were more likely to be important than others.
They said for BT Group to argue that the award was unreasonably weighted to speed was not correct. Throughput speeds, which made up three of the nine metrics, accounted for 32% of the weighting. The remaining 68% was attributed to the remaining six metrics (latency, reliability, packet loss, video resolution, video freezing and video loading). Therefore, the award was not just for the fastest average speed it was much broader assessment than that. Because the weightings were determined by the polling done by GWS, they believed the methodology was fair and representative.
They further disagreed with BT Group that the award was unreliable because it did not distinguish between full fibre, part fibre and copper broadband. They said the award was focused on the connectivity experience of consumers and not the mode of the broadband delivery. The aim of the award was to determine which provider overall offered the best broadband experience, based on technology neutral testing of the 5,000 real-life consumers. The testing therefore compared products meeting the same need and intended for the same purpose and provided a fair comparison of overall end user experience.
They said that while full fibre may be understood to have strengths in specific sub-sets of metrics, that did not take away from the validity of Virgin’s overall performance claim. The award, and the ad, made no specific claim about a certain facet of customer experience but instead promoted how they were the best provider overall for customer experience. Nevertheless, they said that according to a 2024 Ofcom report download speeds for cable reduced less at peak times (8pm to 10pm) than other technologies. That highlighted the strength of cable versus other technologies. In addition, it should be noted that Virgin did not only use a cable network but also provided full fibre in certain UK network areas.
They said that any concern that their cable technology had been compared to disproportionately high numbers of another provider’s copper or part fibre was not valid. That was due to the large nationally representative survey size used and because GWS approached the testing as technologically neutral and did not manipulate the selection of the panellists.
Clearcast said they had been provided with the verification document that the ad linked to. They believed that the document was thorough and showed that Virgin Media had won an independent award. The award was based on the real life usage and over 5000 participants were tested. The tests were done at random times daily and measured upload and download speed, reliability, latency, packet loss, and video streaming metrics on WiFi.
2. Virgin Media said the qualification, which appeared for the duration the award was referenced, stated, “To verify see virginmedia.com/legalawards”. The verification document provided on that web page reflected the section of the GWS report specific to the Best Broadband experience award. They believed the details in that report were extensive and allowed the consumer to understand fully the basis of the award, the metrics, the methodology and results. They said that the verification complied with the BCAP Code and wider legal precedent. However, they said that if necessary they could ask GWS to update the report to include further clarification of the weightings attributed to the various performance metrics.
Clearcast said that on-screen text in the ad clearly showed how viewers could verify the claim. The text also stated that the award was based on “comparing major UK providers’ average performance scores (including speed and reliability)” and that “user speed depends on package choice”. They believed that the information in the verification document was straightforward but also detailed enough for viewers to understand what criteria the award was based on. It further detailed the best broadband experiences ranked by provider.
Assessment
1. Not Upheld
The ad promoted one of Virgin Media’s products “[…] lightning fast M125 broadband” and included various references to “smooth”, which the ASA considered implied that the M125 package, was fast and reliable. We considered consumers were likely to understand that the subsequent claim “All on the provider awarded best broadband experience”, along with the super imposed text “GWS network award […]”, referred to Virgin Media as a provider being a winner with the GWS network awards. Further to that, consumers were likely to understand the term “experience”, alongside the superimposed text that stated, “[…] performance scores (including speed & reliability)”, to mean that the award related to broadband performance, which encompassed technical aspects such as speed and reliability. Finally, because it claimed that Virgin Media had been found to be the “best” we considered consumers would see the reference to the award as an objective comparative claim that Virgin Media’s broadband, including the M125 package, performed better overall than the rest of the market in the technical aspects including speed and reliability, and that Virgin Media had objective evidence to support that.
We understood the GWS network award was based on nine metrics: network delivered download throughput speeds, network available download throughput speeds, network available upload throughput speeds, latency, reliability, packet loss, video resolution, video freezing and video loading. The metrics had been voted on by a poll of GWS UK consumers, who were provided with 12 different aspects of broadband network performance, and were then weighted by their importance to the respondents. The metrics were tested on 5,000 UK consumers at random times, seven days a week over the six-month period. We therefore understood Virgin Media’s network had been tested against others based on objective performance measures, including those related to speed and reliability.
BT Group had raised that the award appeared to be disproportionately based on speed, rather than reliability measures. They believed because the ad implied the award was based on all aspects of broadband experience, but it was primarily based on speed, the claim was misleading. We understood that three of the metrics related directly to speed and they made up 32% of the weighting of the award. The remaining 68% of the award was made up of metrics related to reliability, latency, packet loss and three related to video performance. Therefore, the award was not disproportionately weighted towards speed but included both speed and reliability measures, as stated in the ad.
While we understood the M125 broadband product specifically referred to in the ad used hybrid fibre coaxial technology, which incorporated fibre, BT Group had further raised that Virgin Media predominantly used cable technology, which they believed consistently underperformed against full fibre in terms of reliability measures such as packet loss, jitter, latency and speed consistency. They believed the ad’s reference to the network’s “best broadband experience” award misled consumers into believing Virgin Media’s products would outperform full fibre for all such reliability measures.
We understood that while eight ISPs had been compared for the award, the underlying technology for the broadband, such as full fibre, part fibre, cable or copper, had not been considered. Therefore, an ISP could have a variety of broadband technologies, but the award offered no distinction between them and just considered performance against the selected metrics. We also understood that certain technologies consistently outperformed others on certain metrics. For instance, full fibre generally performed better than cable in terms of packet loss and latency than cable.
The ad, which made clear that the award had been given to Virgin Media as an overall provider, made no specific claim about the underlying technologies used to deliver broadband by Virgin Media, or their major competitors who had been measured for the award and so would be understood to encompass all technologies offered by those major providers. We considered that consumers were likely to expect from the ad that the award was based on robust criteria and measurements, and it would encompass speed and reliability metrics, as part of a broader performance measure, with Virgin Media having been the overall winner. However, we also considered, in particular given that the on-screen text referred to “providers’ average performance scores”, they were unlikely to believe that the winner’s technology would always outperform every single technology from their competitors in all the metrics.
Therefore, because the ad made clear that the award was based on speed and reliability measures, which we understood accurately reflected the award criteria, and did not imply Virgin Media’s technology would surpass their competitors’ technologies on all criteria, the ad did not mislead for the reasons raised by BT Group.
We investigated the ad under BCAP Code rules 3.1 (Misleading advertising), 3.9 (Substantiation) and 3.33 (Comparisons with identifiable competitors), but did not find it in breach.
2. Upheld
BCAP Code rule 3.35 required that comparisons with identifiable competitors must be verifiable. That meant that an ad which featured a comparison with an identifiable competitor or competitors needed to include, or direct consumers to, sufficient information to allow them to understand the comparison, and be able to check the claims were accurate, or ask someone suitably qualified to do so. We considered that in order to understand the basis of the comparison in the claim “Awarded Best Broadband Experience” consumers would need additional information.
The ad had, for the duration the award was referenced, superimposed text that stated, “GWS network award comparing UK providers’ average performance scores (including speed & reliability). To verify, see virginmedia.com/legalawards. User speed depends on package choice”. The webpage mentioned in the superimposed text had a section that stated, “Virgin Media Awards” and within that “Virgin Media O2 awarded Best Broadband Experience GWS report 2024”. A hyperlink within that led to the full verification document which was the section of the GWS report specific to the Best Broadband experience award. Therefore, as the signpost to further information appeared sufficiently prominently within the ad, we considered that information needed to verify the comparison was signposted clearly.
We then assessed whether the information provided on the GWS report was sufficient for consumers to be able to verify the comparison in the ad. The page contained information on the nine measures used to determine the award. In addition, the document explained that the nine elements were weighted depending on the importance to consumers, as determined by a poll done by GWS. However, while Virgin Media had provided further detail to the ASA, at no point in the document did it explain what the weightings were and we considered that was fundamental to understanding what the award had been given for. Because the ad did not include, or direct consumers to, sufficient information to allow them to understand the comparison, we concluded that the claim “Awarded Best Broadband Experience” in the ad was not verifiable and therefore breached the Code.
On that point, the ad breached BCAP Code rule 3.35 (Comparisons with identifiable competitors).
Action
We told Virgin Media to ensure that they provided sufficient information to enable consumers to verify comparisons with identifiable competitors, or signposted consumers to such information.
