Who: Headwater Holidays Limited, Advertising Standards Authority (“ASA”)
Where: UK
When: 8 January 2014
Law stated as at: 29 January 2014
What happened:
The ASA upheld a complaint by disqualified entrant in Headwater Holidays’ “Bootiful Photo” competition.
When drafting prize promotion terms and conditions, one of the key things for advertisers to consider is allowing themselves sufficient scope to deal with participants who they suspect have been cheating. Dishonesty in a competition can lead to bad publicity and bad feeling. Promoters are also under a basic duty to:
[…] conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants (CAP Code, 8.2).
However, taking action against participants who the advertiser or other contestants believe ,may have broken the rules can also carry with it a number of pitfalls, as this recent adjudication by the ASA illustrates.
The competition
Headwater Holidays, an adventure travel company (“Headwater”), ran a “Bootiful Photo” competition on Facebook, in which entrants were asked to post their best photo which included a hiking boot on the company’s Facebook page. The rules stated that the top 10 pictures voted for on Facebook would be shortlisted and judged by a panel of experts. The winning photo would win £500 of Cotswold Outdoor vouchers, the runner-up £300 of vouchers with £200 of vouchers for third place.
Contestant booted out
One contestant, who had finished 10th in the Facebook voting, was reported to Headwater after other competition entrants voiced suspicions that the votes she had obtained on Facebook had been obtained using vote-exchange groups.
A vote-exchange group is a group of people who use an online forum to agree between themselves to vote for other members of the group in online competitions on a reciprocal basis.
The competition rules reserved the right for Headwater to disqualify entrants if it had “reasonable grounds to believe that voting has been manipulated or incentivised”. Headwater, after looking into the matter, came to the conclusion that it reasonably believed that this was the case, and disqualified the contestant. The contestant complained to the ASA that her disqualification breached Headwater’s obligations to administer competitions fairly under the CAP Code.
Which obligations?
Those would be the general obligation under CAP Code 8.2 quoted above, in addition to requirements from various other rules of the code (in general terms):
1. not to give consumers justifiable grounds for complaint (8.14),
2. to fully explain how to participate in the promotion to entrants (8.17.1),
3. to avoid complex rules or adding extra rules (8.23); and
4. to specify the criteria and mechanism for judging entries in
advance (8.28.6).
(For full details of these obligations and the other CAP rules applicable to competitions see here.)
Why did Headwater believe the votes had been hiked up?
Headwater had employed an agency to run the competition and monitor competition entries daily to check that no rule-breaking was going on. This included monitoring voting patterns. The ejected contestant had entered on the final day of the competition and had collected 133 votes in 11 hours while other competition entries had only received 30 votes over a much longer period of time.
The agency flagged the competitor up to Headwater who claimed to have then checked the entrant’s own Facebook page. This apparently indicated that they were a regular competition entrant (or “Comper”) and a member of some voting groups on Facebook. Headwater believed this gave them reasonable grounds to believe that the entrant had taken part in a vote exchange to gain additional votes in the competition, thereby allowing them to disqualify the entrant under the competition rules.
ASA puts the boot in
Unfortunately for Headwater, the ASA ruled that the evidence presented by Headwater was insufficient for them to have “reasonable grounds to believe” that the contestant had been using a vote exchange group. The ASA agreed that the contestant had received a much higher total of votes in a shorter time, and that she had friends and acquaintances who were regular Compers.
The ASA even understood that the contestant had contacted a number of these people to ask for votes, in addition to asking her friends and family. However Headwater had not supplied enough evidence to satisfy the ASA that the votes had been received via a vote exchange or voting group. Nor that the votes received had been “manipulated” or “incentivised”. As such Headwater’s disqualification of the entrant was not within the rules of the competition, and had breached all of the CAP code provisions listed above.
Why this matters:
The ASA’s strict approach on what will be reasonable grounds for belief in cases like this is unlikely to be welcomed by marketers. Obtaining direct proof that arrangements have been made to swap votes may be an unrealistic prospect, given that such arrangements will not always be made on publicly accessible web pages.
The disqualification provisions relating to this competition did seem to allow Headwater a level of discretion, however the ASA clearly felt that even taken together, the facts that the entrant was involved in vote swapping groups and had amassed a number of votes quickly were not “reasonable grounds” to believe that the votes had in fact been manipulated, incentivised or received from vote exchanges.
While not stated in the adjudication, it may be that the relatively small number of votes in question (133) was a factor in the ASA panel’s conclusion. If a person has a large number of Facebook friends who are generally interested in competitions, accumulating this number of votes simply by asking seems at least credible. It is interesting to speculate whether a case where the challenged total was a higher number would have fallen the same way.
Although the ASA panel is not bound by its own decisions, and this case will have turned on its facts to some extent, competition organisers may nonetheless wish to consider how best to shore up their disqualification rights specifically in respect of vote exchanges.
