Telecommunications

The Virgin Media website advertised various broadband bundles available to purchase.

The homepage advertised various bundles available to purchase with Virgin Media. Underneath was an address checker facility that stated:

“Can you join Ireland’s fastest broadband network?
Find out instantly by telling is a couple of details”

Further down the page the following statement appeared:
“It’s official. Virgin Media is Ireland’s fastest broadband network.”

On the Broadband section of the website,
The following statement appeared at the top of the webpage:
“Ireland’s fastest broadband network.”

At the bottom of the page were various awards that Virgin Media had won together with a Speedtest Award logo:
“Speedtest Awards, Ireland’s Fastest Broadband Network. 2017

Ireland’s fastest Broadband network based on Ookla’s analysis of Speedtest Intelligence data for Q2 – Q3 2017. Ookla trademarks used under license and reprinted with permission.”

The headline statement on the “Learn More about our Broadband” section of the website stated:

“Officially the fastest broadband network in Ireland.
After 1 million broadband speed tests, Virgin Media has been awarded Ireland’s Fastest Broadband Network by Ookla, the global leader in broadband testing.”

An image beside the text featured a comparison between Virgin Media’s 360Mb broadband and Sky’s 100Mb product.

Two complaints were received regarding the advertising, one from Sky Ireland while the other was submitted by an individual consumer complainant.

Issue 1:
Sky Ireland considered that the advertising was misleading, inaccurate and exaggerated the performance of the service, which they believed was detrimental to consumers and prevented them from making an informed choice about their broadband service. They did not believe that the claim could be substantiated by Virgin Media and they believed that the test results had been misused.

Sky Ireland noted that a reference to Ookla speed testing had been made at the bottom of both the home page and the broadband page, however, they did not consider that it had been clearly set out for consumers. In regard to the accuracy of the claim, Sky Ireland noted that the claim was being made against data from Q2 2017 and Q3 2017 which they considered was considerably out of date. In regard to the testing by Ookla, Sky Ireland stated that Ookla did not test networks but rather the results referred to the fastest ISP in Ireland, not the fastest network. Sky Ireland also objected to the claim that the results were “official” as they said there was no official basis for the testing as Speedtest.net did not run tests under conditions that were verifiable as most of the tests were carried out over in-home Wi-Fi on devices, therefore, they were not testing the network itself, rather they were testing the Wi-Fi signal. Sky Ireland also asserted that Speedtest.net had no “official” credentials.

They also objected to the claim to be “fastest” and that this could not be supported at a product level as several operators on the Irish market, including Sky Ireland themselves, were offering products with network speeds of up to 1Gbps which was far in excess of Virgin Media’s 360Mbps product.

Sky Ireland considered that for the average consumer, these claims incorrectly asserted that if they wanted the fastest broadband in Ireland, they must join Virgin Media as no other operator could match them.

Issue 2:
In regard to the ‘Learn about broadband” webpage, Sky Ireland considered that this webpage was making further claims about Virgin Media being “Officially the fastest broadband network in Ireland” and had compared their 360Mbps product with Sky’s 100Mbps product. They considered that this was inaccurate and misleading and was not a fair comparison, particularly as Sky were selling a fibre to the home product with speeds of up to 1Gbps.

Issue 3:
The consumer complainant considered that the claim to be “Ireland’s fastest broadband network” was untruthful, particularly as two other operators were offering broadband that was almost three times the speed of Virgin Media’s, 1000Mbps versus 360Mbps.

Issue 1 and 3:
In reply to the issues raised by both Sky Ireland and the consumer complainant, the advertisers stated that since January 2016 they had been named Ireland’s fastest broadband network by the independent measurement institute, Ookla, following their analysis of over one million speed tests by Irish internet users over six months across the main four broadband operators in Ireland. They said that it was based on these one million speed tests that Virgin Media used the “Ireland’s fastest broadband network” claim and they said that at all times where they made this claim, they had referred to the Ookla award.

In response to the question regarding the validity of Speedtest.net’s conditions, Virgin Media said that the Ookla Speedtest was the global standard in Internet connection testing and was carried out directly and independently by consumers themselves. They provided the ASAI Executive with a copy of correspondence from Ookla on the validity of their testing. The advertisers stated that the independent verification of them as “Ireland’s fastest broadband network” has continued and in 2019 they were awarded Ireland’s fastest broadband network for a fourth year in a row, with the analysis of this award taking place from July to December 2018. They said that the results showed undisputedly that they were providing their customers with the highest broadband speeds in Ireland. They said that during the 6-month analysis period, they delivered average broadband speeds of 238.65Mbps to customers across their fibre power network in Ireland, which was over double the speed of their nearest competitor. In addition, and in order to ensure transparency and accuracy, they invited customers to visit their website for more details. They said that in their terms and conditions they provided details of the average wired speeds available.

Issue 2:
In regard to the complaint from Sky regarding the comparison of the advertisers’ 360Mbps product and Sky’s 100Mbps product on their “Learn more about broadband” webpage, they said that they believed this to have been an accurate and fair comparison of Sky’s most widely available speed of 100Mbps. They did acknowledge that Sky had, since the advertisement had been created, launched a 1Gbps service to a cohort of homes in Ireland and they have therefore removed this comparison from their website.

Further information:

The advertisers provided further information from Ookla in the matter.

Ookla advised that they are the global leader in mobile and broadband network intelligence, testing applications and technology. With over 10- million customer-initiated tests taken daily on the company’s flagship platform, Speedtest, Ookla provides invaluable insight into the performance, quality and accessibility of networks worldwide. Operators, businesses and government agencies alike rely on Ookla for unparalleled and immediate information on the state of networks and online services.

Ookla said that there were two types of licenses that could be used by an internet provider
1. Marketing rights: Allow Ookla’s customers to make regional marketing claims in their advertising, relating to their network, based on Ookla’s analysis of Speedtest intelligence data. E.g. Virgin Media has the fastest broadband network in Dublin. Such claims are typically based on 3 months of data.

2. Speedtest Fastest Awards: Based on results from consumer-initiated tests taken across Speedtest applications, Speed Awards represent real-world network performance and the internet speeds operators provide to their customers. Speedtest Awards are presented to the fastest operator at a country level and allow the winner to claim, in their advertising, that they are the fastest broadband (or mobile) provider in their country. The awards are typically based on 6 months of data.

Both marketing rights and Speedtest awards are subject to a commercial licensing agreement between Ookla and the operator.

Ookla advised that once a network licenses a Speedtest Award (or Marketing rights), they require sight of the marketing material before publication to ensure it is in line with the results of their analysis. Ookla also advised that the results of their awards are calculated on a proprietary measurement called Speed Score, which incorporates a measure of each providers download and upload speeds. A 90% weighting is given towards download and 10% towards upload, as generally consumers were focused more on their download speed. Ookla provided information to the Executive, on a confidential basis, about the number of tests carried out and the sample sizes required for the national award. They confirmed that they only publish awards that they are comfortable with as their reputation was invaluable.

Complaint Upheld in Part

The Complaints Committee considered the detail of the complaints and the advertisers’ response. The Committee noted the information provided by Ookla about their national award and how the testing was conducted.

Issues 1 and 3: Not Upheld
The Committee examined the information provided by Ookla and noted that the claim awarded to Virgin Media was that they had “Ireland’s fastest broadband network” which related to the speeds experienced by customers at that time and not that they provided Ireland’s fastest broadband products. The Committee reviewed the information provided by Ookla, some of which had been provided on a confidential basis, including details of their methodology and noted the acceptance of their speed test by regulatory bodies, trade groups, analysts, ISP and carriers. The Committee considered that the award had been accurately portrayed.

The Committee also noted that the “fastest broadband network” award was one that was the result of speed tests from all over Ireland and was an independent test, the results of which were awarded to the company with the fastest broadband network in Ireland. Based on the methodology and the results which showed that Virgin Media customers, at that time, experienced an average speed that was significantly higher than the customers of their competitors, the Committee did not consider that the claim to be “Ireland’s fastest broadband network” was in breach of the Code.

The Committee noted that the reference to the Ookla award and the claim “Ireland’s fastest broadband network” had both appeared on the same webpage and in the circumstances the Committee did not consider that it was unclear to consumers.

The Committee also noted that the Award webpage, viewed in January 2019, had referred to a 2017 award as that was the latest award at that time, but that the webpage had been amended in February 2019 with the most up to date award, the 2018 award.

As the award was from an organisation accepted as the industry standard, the Committee did not consider that the use of descriptors such as ‘official’ was likely to mislead.



Issue 2: Upheld
The Committee noted that the comparison used by Virgin Media had been selected as it was, at a point in time, the most widely available speed from Sky. The Committee noted that the advertisement had clearly shown the two broadband products used in the comparison, therefore, consumers were aware of the speeds being referred to. However, as the text beside the two speed claims stated, “Officially the fastest broadband network in Ireland”, the Committee considered that consumers could reasonably assume that the fastest broadband products of both companies were being referenced. As this was not the case for Sky, because of their introduction of a 1Gbps product, the Committee considered that advertisement was likely to be misleading.

In the circumstances the committee considered that this advertisement had breached Section 4.1 and 4.4 of the Code.

ACTION REQUIRED:
As the advertising containing the comparative information had been withdrawn, no further action was warranted.

The Complaints Committee noted that the substantiation provided by the advertisers in this instance was relevant at the time the advertising claim had been made. In the circumstances, they reminded the advertisers to ensure that current and relevant substantiation was held for all future similar claims.