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 Advertising Standards Authority.
Our next event, Advice:am2pm, will include a session on Promotional Marketing.
Promoters are responsible for all aspects and all stages of their promotions (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, or 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 ASA (or participants’) and care needs to be taken to communicate restrictions of entry clearly.
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 For example, in 2012, the ASA ruled that a promoter should not have withdrawn the promise of prizes after deciding the ‘winner’ had acted improperly. Ts&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).
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 seeking to rely on such broad terms to disqualify entrants unless they are confident that they have clear evidence of abuse.
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 the ASA ruled it was reasonable for a promoter to discount voting entries which were incomplete and therefore did not comply with the requirements of the terms and conditions before announcing a winner (MTV Networks Europe, Starbucks Coffee Company UK Ltd, 6 November 2013).
Creating and enforcing T&Cs retrospectively is unacceptable - even if the aim is to combat abuse (Meeeeet.com t/a Piingwin.com ApS, 3 October 2012). In 2012, a promoter disqualified a participant because it considered she had unfairly canvassed votes. The ASA considered that canvassing for votes was commonplace on social media sites and upheld the complaint because the T&Cs did not state that such behaviour was prohibited and would lead to disqualification (The Number UK Ltd, 4 April 2012). A promoter running a competition to win a wedding who 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.” and then retrospectively introduced restrictions to the voting tactics that finalists could use 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 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).