Promoters are responsible for all aspects and all stages of their promotions (Committee of Advertising Practice (CAP) Rule 8.1), not just the advertising copy which outlines the promotion. Promoters must ensure that agencies, intermediaries and staff are able to deliver on the promotion as described and must avoid causing unnecessary disappointment (Rules 8.2 and 8.14). The Code requires that promotions are conducted equitably, promptly and efficiently and notably, promoters must be seen to deal fairly and honourably with participants and potential participants (Rule 8.2).
Promoters need to take care that appropriate measures are in place to ensure that the structure and mechanic of their promotion is not open to abuse. Allowing abuse is likely to cause consumers who have participated fairly to be disadvantaged. Sometimes participants might simply be seeking to improve their chances of success in legitimate ways but on other occasions, they might be deliberately abusing the promotion by acting in a way that is not expressly prohibited by the T&Cs. A promoter’s understanding of ‘abuse’ may be different to that of the Advertising Standards Authority (ASA) (or participants’) and care needs to be taken to communicate restrictions of entry clearly.
Think ahead to protect your promotion from abuse
Promoters should consider in advance any potential for a promotion to be open to abuse, and put appropriate measures in place to protect against these. This can include specifying in terms and conditions whether there are any restrictions or exclusions on entries, and making any judging criteria clear. Allowing abuse is likely to cause consumers who have participated fairly to be disadvantaged, however disqualifying participants who have not breached the terms and conditions, even if they participate in a way which could be considered unfair to other participants, is likely to be considered problematic.
Do not disqualify those who act within the terms and conditions
Promoters must state clearly how participants should behave and should be wary of disqualifying those who have followed the letter of the conditions but whose actions seem unfair in retrospect. For example, in 2012, the ASA ruled that a promoter should not have withdrawn the promise of prizes after deciding the ‘winner’ had acted improperly. The T&Cs stated a limit of one entry, per e-mail address, per hourly prize draw but did not expressly prohibit multiple entries from a single IP address. Because the complainant had used the same IP address but a different e-mail address for each entry, the ASA ruled that the promoter caused unnecessary disappointment when it withdrew the prizes after notifying the complainant that they had won (PepsiCo International Ltd, 21 November 2012). Similarly, The ASA upheld complaints where the promoter was unable to provide evidence that showed that a disqualified entrant had breached the conditions of the promotion (Headwater Holidays Ltd, 8 January 2014).
In contrast, in 2018 the ASA did not uphold complaints about a photo competition. Complainants challenged whether the winners selected had complied with the judging criteria set out in the terms and conditions, because the winning photos appeared to be of professional quality. Because the terms and conditions had not expressly stated that industry professionals would be excluded from entering the competition, the ASA did not consider this to be an abuse of the promotions terms and the complaints were not upheld (Walkers Snacks Ltd t/a Quaker Oats, 20 June 2018). (See also Hubert Burda Media UK t/a Wedding and Wedding Flowers, 02 December 2015).
In a competition which made it clear that entrants would need to get others to vote for them, the ASA ruled that disqualifying an entrant because of various irregularities in their votes was not a breach of the Code because the terms stated that “no prizes will be awarded as a result of improper actions by or on behalf of any entrant” (Twentieth Century Fox Film Company Ltd, 3 October 2012). In this case the ASA accepted that the entrant had acted improperly but advised that it would have been preferable for the terms and conditions to have set out examples of what might constitute “improper actions”. Generally speaking, promoters should be wary of relying on such broad terms to disqualify entrants unless they are confident that they have clear evidence of abuse.
Do not change terms and conditions retrospectively
Promoters should not change terms and conditions part way through the promotion, or create and enforce T&Cs retrospectively (Rule 8.23) – even if the aim is to combat abuse. It is incumbent on them to determine and communicate the full terms and conditions before the promotion, including how participants should behave.
Ads for a competition to win a wedding encouraged the finalists to “Tell your friends, tell your relatives, tell everyone you can! The more votes you get, the better your chance of winning”. The Promoter retrospectively introduced restrictions to the voting tactics that finalists could use, and as such was held to have administered the promotion unfairly (The Halifax Courier Ltd, 18 September 2013).
Although promoters may not change the T&Cs of a promotion once it has started, the ASA will take into account additional measures a promoter has put in place in order to combat abuse during the course of a promotion. In a competition which permitted only one vote per person every 24-hours, the ASA ruled that, by deploying further security measures as it became aware of more sophisticated attempts to circumvent the restriction, the promoter had taken appropriate steps to ensure the security of the voting system and that the promotion had been administered fairly.
In contrast the ASA ruled that using cookie-based tracking to register votes for the competition was not sufficiently robust to ensure that people only voted once during the course of a promotion because a member of the public could register more than one vote by disabling or clearing the cookies on their computer (Co-operative Group Ltd, 7 March 2012). Similarly, a promoter which disqualified the winner of a promotion for breaching voting terms and conditions used a third party to manage and monitor voting activity and could demonstrate that the disqualified participant had breached the terms of entry (Hubert Burda Media UK t/a Wedding and Wedding Flowers, 02 December 2015).
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA.
CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
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