A competition, promoted by Brothers Cider and seen on 17 April, offered the chance to win festival tickets, £1,000 cash, an iPhone and 20 cases of cider. Under the heading "How to enter", text stated "All you have to do is make a short video which shows off your festival presenting skills to the max and post it on the Brothers Facebook Page by 21st May … At Brothers we hate rules, so we've kept things simple. Your video should be no more than about a minute long. Whether it touches on music, your friends, the best cider in the universe, that fantastic sense of festival freedom or something completely nuts is totally up to you … The Top 10 videos will be voted for by Brothers Facebook Fans with the winner being chosen by The Brothers themselves. The runners up will be given pairs of festival tickets and up to 1,000 others will be sent Brothers Festival packs, containing a Festival Flag, a lanyard and a badge. So put your thinking cap on, jump in front of the camera, dust off your wellies and get ready for festival freedom! …". Text in the terms and conditions at the bottom of the page included: "The Top 10 videos with the highest number of votes will be short-listed and will each receive a pair of tickets of a festival as selected by Brothers and subject to availability. The overall winner from the Top 10 videos will be selected by The Brothers Team based on originality, and content and will win the titles of Brothers Festival Friend...".
The complainant challenged whether the competition was administered fairly.
Brothers Drinks Co Ltd, trading as Brothers Cider (Brothers Cider), responded that the competition had run from 21 March to 21 May and required participants to enter videos demonstrating why they would be an ideal festival reporter via the Brothers Cider Facebook page. They said the competition was launched on Facebook but also featured as a news story on the Brothers Cider website.
Brothers Cider explained that the terms and conditions had initially stated that a shortlist of the top ten entries would be compiled by a public vote on Facebook, and that a panel of judges would select the winning entry from those ten. However, at the point of launch they had received a negative reaction to the idea of a public vote from their Facebook fans, who had told them it would discourage them from entering. Brothers Cider therefore issued new terms and conditions which entirely removed the voting element of the competition on 22 March. No entries had been received at that point. Brothers Cider said the Facebook page was updated to reflect the change, but the news feature on the website was overlooked and continued to display the outdated terms and conditions. However, they stated that the only route of entry was through Facebook and that the news item on their website linked directly to their Facebook page. They provided a screenshot which showed participants were told that by uploading their entry they were agreeing to the competition's terms and conditions, and they were given a link to view these.
Brothers Cider said the Brothers team compiled a shortlist of ten videos once the closing date had passed. However, the judging panel had difficulty choosing between their favourite four entries and therefore decided to ask their Facebook fans for their opinions on those four videos. Brothers Cider stressed that this was done purely to canvass opinion and that the eventual winner was decided wholly by the judging panel, as per the terms and conditions for the competition.
Brothers Cider acknowledged that it was not ideal to change the terms and conditions once the competition had begun, but said they had taken the decision in view of the fact that no entries had been received at that point. They considered that they had correctly followed the revised terms and conditions and said all shortlisted entrants had been sent a pair of festival tickets as laid out in the rules.
The ASA noted that Brothers Cider had taken the decision to amend the competition's terms and conditions on 22 March before any entries had been received, and that while the Facebook page had been updated accordingly the news feature on the Brothers Cider website had been overlooked. We acknowledged that participants were presented with a page which stated that by entering the competition they were agreeing to its terms and conditions, and that those terms and conditions were available to read via a link, but we considered that it was not clear those terms and conditions had changed and that anyone who had read the original version on the website would not know there was a reason to click on the link.
We understood that on 28 May, Facebook fans of Brothers Cider were invited to comment on the judges' favourite four entries. Although Brothers Cider told us that the decision on the winner was purely down to the judging panel and was not determined by the number of votes each video received, we noted that their Facebook page stated "We need some help choosing who our BFF [Brothers Festival Friend] should be ... who do you think deserves to claim the title?". In that context, we considered that it was both reasonable for the public to assume that their response to the videos would have some influence on the selection of the winner, and unlikely that the judges' decision would not have been affected in any way by the public reaction. We therefore considered that the terms and conditions of the competition had not been properly followed in respect of choosing the winner.
Because we were not satisfied that the competition had been administered fairly, particularly with regard to the selection of the final winner, we concluded that it had breached the Code.
The competition breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions) and 8.28.6 8.28.6 in a competition, the criteria and mechanism for judging entries (for example, the most apt and original tiebreaker) (Significant conditions for promotions).
The competition must not be run again in its current form. We told Brothers Cider to ensure they had suitable terms and conditions in place so that future competitions would be administered fairly.