ASA Adjudication on Mercedes-Benz (United Kingdom) Ltd
Mercedes-Benz (United Kingdom) Ltd
18 January 2012
Internet (sales promotion)
Number of complaints:
A website, visited in June 2011, contained details of a competition to win a Mercedes-Benz Vito van. Text on the website read "WIN A NEW VITO COMPETITION!" and after the closing date had passed text stated "The competition has now closed and the 10 finalists have been shortlisted in the ‘Win a new Vito’ competition! ... Now it's down to you, the public to vote for your favourite entry! Visit the voting section using the button below and remember to tell your friends and family!".
The complainant, who was one of the ten finalists, challenged whether the competition had been administered fairly because the terms and conditions had been changed while it was in progress, which resulted in her disqualification.
CAP Code (Edition 12)
Mercedes-Benz UK Limited (Mercedes-Benz) said the competition required people to create their own video, written submission or photograph with a caption that demonstrated why they deserved to 'win a new Vito'. They explained that a judging panel reviewed all submissions once the closing date for entries had passed and drew up a shortlist of ten entries which were put up for the public vote for one month from 1 September 2011. They said an e-mail was sent to the shortlisted candidates confirming their submissions had been successful.
They said they had used an online platform to collate votes as this ensured that only one vote per person could be cast. They said the original terms and conditions were published on the website from 1 September and that a 'right to amend' clause, which stated "The Promoter reserves its right to alter, amend or foreclose the promotion at any time and without any further notice", was included to ensure that unforeseen circumstances could be addressed.
They explained that, during the course of the competition, the complainant informed them that she suspected two other finalists had acted improperly by posting on third-party websites designed as forums for those taking part in competitions that utilised public voting systems. They explained that a number of the complainant's e-mails alerting them to the possible problem went into a spam folder and that they only became aware of them during a routine trawl of their system on 19 September. They explained that, once they were aware of the complainant's concerns, they contacted her to explain that, in their view, the use of third-party websites to promote an entry did not break competition rules. They explained that the complainant challenged that decision and that, upon further investigation, they became aware that some finalists had not simply been 'promoting' their entry and had actually been actively incentivising voters by offering to pay for their votes. They therefore felt it necessary to take action against those finalists because they considered that they had not acted in the spirit of the competition, which had not been designed with incentivised voting in mind.
They explained that they froze the competition online voting on 21 September, disqualified the two finalists who they knew had been paying for votes and added a clause to the terms and conditions, which stated "The Promoter reserves the right to disqualify any Finalists from participating in the competition if it has reason to believe that anyone voting for such Finalist's submission has been paid or incentivised in any way for placing their vote, either by the Finalist or any third party". They said the voting facility was reactivated on 22 September and that all finalists were notified of those actions by e-mail on that day. They said they subsequently became aware that the complainant had made use of websites that allowed her to exchange votes with people participating in other competitions. They considered that this reciprocal arrangement constituted an incentive to voters and they therefore disqualified her (on 23 September) in line with the amended terms and conditions.
Mercedes-Benz stated that they had learned lessons from the running of the competition, particularly regarding communication and the need for robust terms and conditions, but they believed that the remedial actions they had taken ensured all finalists were treated fairly.
The ASA accepted that the practice of vote buying/incentivising was not one Mercedes-Benz had envisaged and that they had taken the actions they considered appropriate to ensure those practices did not unfairly influence the result of the competition. We understood that, having seen that some finalists were using third-party websites to pay for votes, the complainant contacted Mercedes-Benz by e-mail on 5 September to clarify whether this was a legitimate practice. We understood that she did not receive a response until 19 September and that, in the intervening period, she had posted on vote exchange websites on the understanding that this had not been prohibited in the terms and conditions and that no action appeared to be being taken against those who had engaged in vote buying.
We considered that the lack of detail in the terms and conditions and the delay in responding to the complainant's legitimate concerns created uncertainty regarding the rules of the competition and we did not consider the fact that the complainant's e-mails had been directed to a spam folder was a sufficient justification for the delay. We concluded that the complainant had justifiable grounds for complaint when she was disqualified for engaging in practices that were not prohibited in the original terms and conditions and which Mercedes-Benz had at one point expressly condoned. Because of that, we considered that the competition had not been conducted efficiently and had caused the complainant unnecessary disappointment. We therefore concluded the competition had breached the Code.
The competition breached CAP Code (Edition 12) rules 8.1, 8.2 and 8.14 (Sales promotions).
We understood the competition had now ended and that Mercedes-Benz did not intend to run a competition with the same mechanics in the future. We told them to ensure that they had suitable terms and conditions and internal systems in place so that future competitions were administered effectively.