In a photo contest, the promoter smelt a rat and disqualified two contestants. Both challenged this, but the rules said the promoters’ decision was final and no correspondence or discussion would be entered into. Was this binding? Anna Williams’ final say is here.
Topic: Promotion Marketing
Who: Marcoms Associate Garmin (Europe) Ltd
When: 13 January 2010
Where: Advertising Standards Authority
Law stated as at: 19 January 2010
What happened:
The Advertising Standards Authority (ASA) received complaints from two disgruntled individuals who entered into an online competition operated by Marcoms Associate Garmin (Europe) Ltd ("Garmin"). The competition gave UK and Ireland residents the chance to win a new Garmin Oregon 550 outdoor navigator and a trip to Newfoundland in Canada if they entered into Garmin's geocaching and photography competition. Geocaching is an outdoor activity in which the participants use a GPS receiver or other navigational techniques to hide and seek containers (which are called "geocaches" or "caches") located anywhere in the world.
What went wrong with the competition?
To take part, participants were instructed to:
1. log into their geocaching.com account and register for Garmin's photo contest;
2. select one of the geocaches related to the contest and head outdoors to find it; then
3. take an inspirational photo of the area where they found the geocache and upload it to a particular website (and they could only submit one photo per designated geocache listing throughout the term of the promotion).
Participants were instructed that one winner would be selected each week during each of the 12 weeks forming the competition period and that the winners would be determined by public vote. At the end of the promotion, Garmin itself would then select one Grand Prize winner from the 12 weekly winners selected.
The two complaints received by the ASA focused on different issues.
One complainant (Complainant X) believed the competition had not been conducted fairly as she had been disqualified on the basis that she had used a photograph which was not her own despite her assurances it was in fact her own image.
The second complainant (Complainant Y) believed the details provided as to how to participate in the competition were not clearly specified at the time of entry by Garmin. Complainant Y had also been disqualified and she believed it was on the basis that she had not logged any caches although the terms and conditions did not state that to do so was an entry requirement.
The ASA reviewed the Garmin promotion as against CAP Code clauses 7.1 (Truthfulness), 27.4 (Sales promotion rules – Introduction), 31.1 (Sales promotion rules – Administration) and 34.1a (Sales promotion rules – Significant conditions for promotions).
What did Garmin have to say?
Where the Complainant X's issues were concerned, Garmin explained to the ASA that she had submitted a photograph to the competition which received the most votes in week nine and so was published on Garmin's website as the winner for that week. Garmin later discovered that the same photograph had been submitted to another photography competition a year earlier and the name of the photographer quoted in relation to that competition was different to the name of Complainant X. Garmin therefore reached the conclusion that Complainant X had sought to pass off someone else's photograph as her own.
As the competition's terms and conditions stated " …In order to enter you must select the geocache you want to find, physically locate the geocache and take a photo of the area that the geocache is placed in …", Garmin believed the entrant concerned had submitted an entry that was not her own and which pre-dated Garmin's competition and so as Complainant X had not physically located the geocache concerned and taken a photograph of the area in which it was placed as required by the competition terms and condition, she should be disqualified.
Garmin did not provide a reason for the disqualification to Complainant X as the promotion terms stated that in the event of any dispute regarding the promotion, Garmin's decision was final and correspondence would not be entered into.
Turning to the issues that arose with Complainant Y's entry, Garmin said they discovered after receiving this that the accounts used by both Complainant X and Complainant Y had been created from the same Internet Protocol (IP) address, on the same day, using the same password. Garmin therefore believed that Complainat X was seeking to re-enter the promotion fraudulently in another guise and so Complainant Y was also disqualified. Again, the reason for the disqualification was not disclosed, although as a gesture of goodwill Garmin did provide Complainant Y with a runner-up prize of a GPS navigation unit.
What did the ASA make of all this?
Through correspondence with the ASA, Complainant X asserted she had not been dishonest, she had simply entered the 2008 competition under a different name because she did not feel comfortable with her real name appearing on the Internet. She stressed that the image she had entered into the Garmin competition was original and the reason the photograph was taken before the start of the Garmin competition, but in the area of the geocache she selected and found, was because she often visited that area due to having family and friends living there.
Complainant Y argued to the ASA that she was not the same person as Complaint X. They were simply friends who had created their online accounts on the same day, at the same house. Both happened to use the same password because it had a special meaning to them both.
The ASA decided that it was possible both complainants could have entered the competition legitimately but it also felt that Garmin's reasons for suspecting their entries were understandable. The ASA agreed that if Complainant X had indeed submitted someone else's photograph that would mean she had not physically located the geocache and taken a photograph of the area it was placed in, and therefore did not comply with the promotion terms so was eligible for disqualification. Similarly, if Complainant Y was indeed the same person as Complainant X then Complainant X would have attempted to enter a competition she was already disqualified from participating in and so Garmin would have grounds to disqualify Complainant Y as well.
In the end, the ASA ruled that it would not uphold either of the complaints. Because the promotion terms and conditions stated that in the event of any dispute, the decision of Garmin would be final and no correspondence or discussion would be entered into, the ASA considered that it was not strictly necessary for Garmin to investigate its suspicions. The ASA felt that even if it had done so, it would have been difficult for Garmin to establish for certain whether its suspicions were correct. In the circumstances, the ASA decided Garmin did not act unreasonably in disqualifying both entrants and that the competition had been conducted fairly with details of entry clearly specified.
Why this matters:
This case provides an interesting example of how far the ASA believes promoters need to investigate their suspicions before disqualifying an entrant. However, this adjudication should not be taken as a precedent in such cases as each incident will very much depend on its facts and the circumstances. Promoters should remember that they always need to act in the spirit of the CAP Code which means they need to operate their promotions in a way that is decent and honest with a sense of responsibility and fairness to consumers.
Whilst a promoter does not have to explain itself to entrants, if it can rely on a provision within its promotion terms and conditions that states its decisions are final and correspondence will not be entered into, it does still need to act reasonably. If a promoter does not act reasonably then it could still be considered to have acted contrary to CAP Code provisions such as broadly drafted section 27.4 which states that promotions should be conducted "equitably, promptly and efficiently" and that they should "be seen to deal fairly and honourably with consumers". To state that a promoter's decisions are final will not therefore always get the promoter off the hook if they have acted unfairly and caused unnecessary disappointment to consumers, but including such a term in promotion rules is clearly advisable.
Anna Williams (née Montes)
Senior Associate
Osborne Clarke, London
anna.williams@osborneclarke.com
