Background

Summary of Council decision:

Five issues were investigated, of which two were Upheld and three were Not upheld.

Ad description

A TV ad, two press ads and a poster, for YouView:

a. The TV ad showed scenes from various TV programmes being projected onto buildings. A voice-over stated, "Something extraordinary is happening to TV. YouView is the easiest way to watch catch up TV, on your TV". Small text at the bottom of the screen stated "T&Cs apply. Subject to coverage. Min 3Mb broadband and aerial required". The voice-over continued, "Simply scroll back through the past week". Large text appeared on screen that stated "7 day catch up Subscription free", followed by the logos of BBC iPlayer, itv Player, 4oD and DEMAND5. The voice-over stated, "Seven day catch up, subscription free, all in one box. YouView. Extraordinary TV for everyone."

b. The first press ad, published in the Radio Times, was headed "SCROLL BACK: THE WAY FORWARD Catch up with seven days of terrific TV whenever you want with YouView". Text in the body of the ad included the claim "With YouView, the new easy-to-use TV service, its unique scroll back function lets you browse the past seven days' shows from across the BBC, ITV, Channel 4 and Five".

c. The second press ad, published in the Daily Telegraph, included the claims "Over 70 digital channels including HD" and "Subscription free" in the main body of the ad. Small print at the bottom stated "YouView service subject to terms of use, broadband connection with suitable speed, TV aerial and coverage, see www.youview.com for details".

d. The poster stated "Record your favourite shows in HD." The logos of BBC One HD, Channel 4 HD and ITV1 HD were displayed underneath.

Issue

The ASA received complaints from Virgin Media and British Sky Broadcasting (Sky).

Virgin Media challenged whether the claims:

1. "YouView is the easiest way to watch catch up TV, on your TV" in ad (a); and

2. "unique scroll back function" in ad (b)

were misleading and could be substantiated, because they provided similar services.

3. Virgin Media also challenged whether the claim "Subscription free" in ads (a) and (c) was misleading, because it implied there was no cost to the consumer to access the service when they understood that a broadband subscription was required.

4. Virgin Media and Sky challenged whether the claim "Over 70 digital channels including HD" in ad (c) misleadingly exaggerated the availability of audio-visual and HD channels, because they understood that at least 24 of the available channels were radio and only four were HD.

5. Sky challenged whether the claim "Record your favourite shows in HD" in ad (d) misleadingly exaggerated the availability of HD channels.

Response

YouView said their service brought together standard linear broadcast TV via a TV aerial with on-demand catch-up content via a broadband connection, accessible through a set-top box. The platform provided a link from its electronic programming guide (EPG) to a variety of free on-demand catch-up content made available by broadcasters like the BBC, ITV, Channel 4 and Channel 5. Those services could be accessed from the seven-day backwards EPG, which allowed users to scroll back over the previous seven days' listings and view the catch-up content made available to YouView by those broadcasters.

1. YouView said that prior to the launch of their service, they conducted a three-month trial involving members of the public who were selected in such a way as to generate a sample that was as representative of the UK population as possible. Around 2,000 triallists responded to a questionnaire about their experience; YouView provided a copy of the questionnaire and results. They highlighted that 77% of respondents who had previously used other methods to view on-demand catch-up content on their TV agreed that in comparison to the other methods they had used, being able to scroll back in time in YouView's EPG made it easier to find and play on-demand programmes. Also, 67% of respondents agreed it was easier to browse and discover new on-demand programmes through YouView than through their previous service, and 52% of respondents who had previously used Virgin Media's TiVo box found scrolling back in time to find on-demand programmes was easier using YouView. YouView said they had also received a higher 'system usability' score than other methods.

YouView acknowledged the questionnaire had not specifically asked triallists whether they agreed that YouView was the easiest way to watch catch-up TV on their TV, but they considered that the questionnaire had covered the two primary methods of watching catch-up TV on a TV – using a device with a scroll-back EPG to select content or using a search function to search for content. They said it was important to note that YouView's search function searched content across all of the catch-up TV players at the same time, and that such searches could be conducted at any time, including during normal linear TV viewing and the playback of on-demand content. They considered the evidence showed that, through the scroll-back EPG function, YouView was easier than all other recognised methods of watching catch-up TV, including TiVo. They believed their search function was also easier to use than all other methods of watching catch-up TV on a TV.

In addition to the customer research, YouView had compared their service with similar services from Freesat, Freeview and Samsung, including comparing the number of steps taken to access on-demand content, whether catch-up TV could be accessed via the TV guide, and searching for alternative content during the playback of catch-up/on-demand programming. They said the comparisons showed that although YouView involved one more step when loading a content player (such as the BBC iPlayer), in relation to the other comparisons, YouView involved fewer steps or had functionality that was not available with the other services.

Clearcast said YouView had provided them with evidence which showed that when comparing YouView with similar services the number of steps taken to access on-demand content might sometimes have an extra step involved. However, YouView often had fewer steps or the function wasn't available on the other services. They also noted the consumer research YouView had provided.

2. YouView said they considered their EPG to be unique, but it was never intended for the claim to be used to state that YouView was the only provider of a backwards EPG function. They accepted they were not the only service providing such a function and said the claim had only been used in ad (b) and would not be used again.

3. YouView believed the average consumer understood that they would need a broadband connection to watch on-demand TV regardless of the method used to access it, and they confirmed that there was no subscription charge payable to YouView. They said that many other similar providers also claimed that their services were "subscription free" and if the ASA were to uphold the complaint it would have wide-ranging impact.

Clearcast, responding in relation to ad (a) only, said YouView had assured them that there were no subscription charges payable to YouView. They had taken the view that the average consumer would know that on-demand services retrieved programming from broadcasters' online libraries and therefore an internet connection was required. They considered the on-screen text "Min 3Mb broadband ... required" made it clear that YouView's service was free from subscription and could be used along with a consumer's existing internet package.

4. YouView said their platform provided access to the same channels as Freeview, which was around 50 digital TV channels and 24 radio stations. They highlighted that the claim referred to "digital channels" rather than specifically to "TV channels", and they believed consumers understood that the claim referred to both TV and radio. They said the channels they provided included free-to-air terrestrial HD channels that broadcast programmes which consistently accounted for the most-watched TV shows. They said they had not received any complaints from consumers in this regard.

5. YouView said the image of Gary Barlow in the ad was in reference to his role in the X Factor, which was being broadcast on ITV1 HD at the time the ad was displayed. The ad also featured the logos of the other HD channels which were available from YouView and did not reference HD channels which were not available. YouView said the claim "your favourite shows in HD" was substantiated by research they had conducted into the most-watched programmes in the four months preceding publication of the ad. They provided BARB data which showed that the top 20 programmes in terms of audience figures for every week during that period were broadcast on the terrestrial free-to-air channels, the majority of which were on channels that were broadcast simultaneously in HD. Of those programmes which were broadcast on channels which did not have a simultaneous HD equivalent, all but one programme had also been broadcast at another time on an HD channel available from YouView. YouView said their research demonstrated that the UK's "favourite shows" had therefore been available in HD via YouView's service.

Assessment

1. Upheld

The ASA noted YouView's consumer research included a number of questions that asked triallists to compare YouView's service with other methods of accessing on-demand content on their TV, including whether it was faster to access on-demand programmes, whether it was easier to browse for on-demand content, whether the scroll-back function made it easier to find on-demand programmes, and whether that function made it easier to use YouView than the Virgin TiVo box. We also noted that triallists were asked whether they agreed with the statement "I thought the service [YouView] was easy to use". We acknowledged that the comparative questions provided consumers' views about the speed or ease of use relating to specific aspects and functions of YouView's service compared to other methods they had previously used. We noted, however, that the triallists had not been asked a general question about whether they agreed that YouView was the easiest way to watch catch-up TV on their TV. We considered that although YouView had asked about the ease of use of specific functions related to watching catch-up TV, in order to substantiate the general claim that "YouView is the easiest way to watch catch up TV, on your TV" triallists should specifically have been asked whether or not they agreed with that statement. We concluded the claim had not been adequately substantiated.

On this point, ad (a) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 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.
 (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),  3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service.  (Exaggeration) and  3.38 3.38 Advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, consumers. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage.  (Other Comparisons).

2. Upheld

We considered consumers would understand the claim "unique scroll back function" to mean that YouView was the only service which included the ability to scroll backwards through an EPG. Because that was not the case, we concluded the claim was misleading.

On this point, ad (b) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  (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),  3.1 3.1 Advertisements must not materially mislead or be likely to do so.   (Exaggeration) and  3.38 3.38 Advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, consumers. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage.  (Other Comparisons).

3. Not upheld

We noted that both the TV and print ad included the prominent claim "Subscription free", but also included text which referenced the need for a broadband connection. We considered the average consumer would be aware that an internet connection (from any broadband provider) was needed to access on-demand TV content and that such a connection would involve subscription charges payable to their internet service provider. Furthermore, we considered that, even if some consumers were not aware that they would need an internet connection to access on-demand content through YouView's service, the inclusion of the on-screen text in ad (a) and the small print in ad (c) would alert them to that requirement and therefore that there would be costs involved. We concluded the ads were not misleading in that regard.

On this point, we investigated ad (a) under BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 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.
 (Misleading advertising), but did not find it in breach.

On this point, we investigated ad (c) under CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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), but did not find it in breach.

4. Not upheld

We noted the ad referred generally to "digital channels" and considered consumers would understand that YouView would therefore include both TV and radio channels. We also considered consumers were likely to understand that not all channels were available in HD and that there would be only a limited number of HD channels available. We concluded the claim did not exaggerate the availability of TV or HD channels on YouView.

On this point, we investigated ad (c) under CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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) and  3.1 3.1 Advertisements must not materially mislead or be likely to do so.   (Exaggeration), but did not find it in breach.

5. Not upheld

We considered consumers would understand the claim to be a general claim that the most popular programmes in the UK could be recorded in HD using YouView's service, rather than that programmes on all HD channels could be recorded or that their own specific favourite programmes could be recorded in HD. We considered that the display of the logos of three of the HD channels available on YouView would also contribute to the understanding that the claim was in relation to programmes available on a limited number of channels. Because we had seen evidence that showed that the most-watched TV shows in the UK had been available for recording in HD through YouView's service, and because the ad included only the logos of HD channels that were available through YouView, we considered the claim was not misleading.

On this point, we investigated ad (d) under CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 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),  3.1 3.1 Advertisements must not materially mislead or be likely to do so.   (Exaggeration) and  3.38 3.38 Advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, consumers. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage.  (Other Comparisons), but did not find it in breach.

Action

No further action necessary in relation to ads (c) and (d). Ad (a) must not be broadcast again in its current form and ad (b) must not appear again in its current form. We told YouView to ensure they held adequate evidence to substantiate comparative claims and to ensure their claims were not misleading.

BCAP Code

3.1     3.12     3.2     3.38     3.9    

CAP Code (Edition 12)

3.1     3.11     3.3     3.38     3.7    


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