Who: Committee of Advertising Practice (“CAP”)
Where: UK
When: 14 September 2018
Law stated as at: 26 October 2018
What happened:
The Committee of Advertising Practice recently published guidance on the selection, notification and announcement of prize winners. The guidance states that promotors should select winners randomly or independently and make reasonable attempts to inform winners and award a prize.
Key takeaways from the guidance include the following:
- Selecting prize winners as part of a prize draw: Prizes should be awarded in accordance with the laws of chance. Where a computer process is used in selection, the ASA must be provided with evidence which verifies that the process is random. Where a computer programme has not been used, an independent observer must monitor the selection of winners in accordance with rule 8.24 of the CAP Code.
- Prize winner selection is open to subjective interpretation: Rule 8.26 requires that an independent judge is involved. If a judge acts alone, that judge must be independent and if there is a panel, at least one judge should be independent. CAP guidance highlights a previous ruling of the ASA, which found that a promotion that did not provide details of its independent panel of judges was unfairly administered and in breach of the Code.
- Notifying results: Rule 8.28.4 of the CAP Code requires that the terms and conditions of a prize promotion should include information on how and when the winner(s) will be notified of results. The guidance highlights a finding against the Hard Rock Café in 2015, which upheld a complaint about a tweet promoting a competition because full terms and conditions had not been provided to consumers and it was unclear how or when winners would be notified.
- How to contact winners: CAP highlights that terms and conditions should clearly state how winners will be contacted. Any time limits on claiming prizes should be made clear in the terms and conditions so that consumers are not disappointed unnecessarily. Promoters should take adequate steps and make adequate attempts to contact winners about the fact that they have won. The CAP notes that, in a finding against Walkers Snacks in 2013, calling a winner once was not considered sufficient.
- Publishing names of winners: Significantly, the latest guidance states that the ASA will not administer rule 8.28.5, which requires that promoters must publish or make available the full name and country of all major prize winners. The rule also requires that promoters must obtain consent from all competition entrants to publish information about them should they win. CAP is currently completing changes to its rules on the collection and use of data for marketing following a consultation which closed in June 2018. The changes should ensure that the CAP rules are aligned with standards introduced by the GDPR and cover issues most relevant to marketing.
Why does this matter:
The guidance serves as a useful reminder of the rules surrounding choosing winners of prize draws.
The most significant point is the update to naming winners. Although rule 8.28.5 is not currently being administered, promoters should be aware of their data protection obligations in relation to potential prize winners and ensure that their internal data protection policies and processes are GDPR-compliant. Promoters should continue to obtain consent from all competition entrants to publish information about them should they win. It is possible that the updated CAP Code will require the publication of such information and promotors that have obtained consent for such publication will be well-placed to comply with the rules when they are again administered.
