BT and Sky had teamed up to complain that the “unlimited” claim was misleading, because they believed that Virgin Media’s traffic management policy had a more than moderate impact on those customers who exceeded data thresholds. A member of the public, and Sky also challenged whether the website claim “Unlimited downloads Download and browse as much as you like with no caps and no hidden charges” misleadingly implied that there were no provider-imposed restrictions on a customer’s ability to download data. Both complaints have been upheld as misleading advertising.

Virgin Media’s website had stated:

“The faster your broadband speed, the more you’ll be able to do online. So, if there are a few of you at home gaming, downloading, streaming movies and shopping, then mega speeds of up to 100Mb will let you all do your thing without slowing each other down. If you’re going to do a bit less than that, but still want consistently fast broadband even at peak times, then you’ll be fine with our up to 30Mb or up to 60Mb tariffs … You get all this with your package too … Our fastest wireless … Free internet security … Unlimited downloads Download and browse as much as you like with no caps and no hidden charges”.

In response to the compliant Virgin Media argued over average customer expectations that they would not be disconnected or charge extra for downloading what they wanted. They believed the unlimited term clearly referenced the download element of the service and as 97.7% of customers were not affected by traffic management, the average consumer’s expectations would be met. Even where subscribers were traffic managed, Virgin Media tried to be clever and argue that speeds over a 24 hour period would still be above the UK average.

The ASA disagreed. They acknowledge the claim of unlimited meant no added charges, or service suspension. But consumers were likely to expect that services described as “unlimited” were subject only to moderate restrictions. The average consumer would not expect unlimited services to be throttled by 50%. Virgin Promote the high speed nature of their service the website advert places emphasis on the performance and potential maximum speed. This was likely to appeal to consumers who wished to carry out bandwidth intensive activities. Thus, reducing users’ download speeds by 50% was not moderate and contradicted the claims that the service was “unlimited”.

Furthermore The ASA ruled that The claims “unlimited” and “no caps” implied that there were no other restrictions to the service. Throttling speed by 50% was considered an immoderate restriction to the advertised “unlimited” service. The claim “Unlimited downloads Download and browse as much as you like with no caps and no hidden charges” misleadingly implied that there were no provider-imposed restrictions on a customer’s ability to download data.

The ASA has told Virgin Media

not to claim that their service was “unlimited” and with “no caps” if they imposed restrictions that were more than moderate.

Advertising Standards Authority Adjudication