A Thomas Cook competition featured on their Twitter page and seen on 17 June 2017 featured text that stated, “Pinned Tweet Thomas Cook @ThomasCookUK 3d Post a photo/video of your strut and #flamingoroam, for a chance to win a £5,000 Thomas Cook gift car. T&Cs apply: po.st/3djU3f”.
The complainant could not access the terms and conditions via the link and was unable to submit their video because they had been given the wrong closing date. They were subsequently told to submit their entry via another platform advertising the promotion, which they understood was governed by different terms and conditions. The complainant challenged whether the advertised promotion had dealt fairly and honourably with participants.
Thomas Cook recognised that there were parts of the delivery of the prize promotion which did not run smoothly and regrettably errors were made. They acknowledged that this had resulted in the complainant being unable to enter the prize draw.
Thomas Cook stated that the promotion was administered across Twitter and on one of their other social media platforms with different closing dates for entries. Regarding the promotional tweet, they felt that there was insufficient space to adequately explain the different closing dates without causing confusion to participants. They believed that if they had published the closing date in the promotional tweet it could have implied that this was the overall prize draw closing date, which wouldn’t have been the case. They therefore intended to rely on the link to the full T&Cs that was shown in the tweet, which explained the two ways participants could enter the prize draw along with the respective closing dates.
Thomas Cook stated that their social media team had observed multiple videos being uploaded from the opening date and that it was not apparent to them that there was an issue with the link to the T&Cs. It only became evident on the 20 June that the link to the T&C’s had not been working, which was after the closing date for receiving entries via Twitter, and so no action could be taken to amend the link. However, the tweet was unpinned from the Thomas Cook Twitter page on the closing date 19 June (after the closing time).
Thomas Cook stated that they had two entry routes with different closing dates because they wanted to ensure that participants who entered had viewed either the promotional tweet or the post that was shown on one of their other social media platforms promoting the prize draw. They decided that they would start the promotion to coincide with activity at a Thomas Cook store over the weekend of 17–19 June. Their travel agency team promoted the prize draw at the store, directed people to Twitter to enter, and the promotion was pinned to the Thomas Cook Twitter feed over the course of that weekend. Once the tweet was unpinned from the Thomas Cook Twitter feed, they were concerned that this meant visibility of the tweet (with T&C’s) would be lost. They believed that this would have resulted in people seeing others making tweets of the “flamingo roam” independently of the promotional tweet and therefore, would not have been clear if those participants had seen the original promotional tweet, the entry rules, or the T&Cs. Therefore, in the interests of fairness, entries via Twitter would only be accepted whilst the promotional tweet was pinned to the Thomas Cook Twitter page.
A similar approach was taken with how Thomas Cook promoted the same prize draw on their other social media platform. They wanted to ensure participants had viewed the ad promoting the prize draw, observed the entry rules and T&Cs before posting their video. They had decided to target this particular ad to promote the prize draw and participants would enter via that way. The longer closing date for this entry route was intended to allow more people to participate who had been served the ad.
Thomas Cook stated that both entry routes were covered by the same T&Cs which they believed clearly defined the entry rules along with the respective closing dates, and provided a copy of the full T&Cs. However, they stated that due to a human error the promotional tweet went live with an incorrect link to the T&Cs.
Thomas Cook stated that the prize draw was operated in good faith and that they had carefully considered and evaluated the most effective and fair way to run the promotion, working within the parameters of the different social media platforms. They were apologetic that the link to the T&Cs shown in the tweet was not working. Whilst their customer care team tried to help the complainant, they had unfortunately mistakenly mentioned an incorrect closing date which they also apologised for.
Moving forward, Thomas Cook stated that they were committed to ensuring that this situation did not happen again by ensuring links were fully working before promotions went live, and that the relevant teams were fully briefed on the rules in order to avoid incorrect information being provided.
The ASA welcomed the assurance Thomas Cook had provided to ensure that their future promotions included an operational link to the full T&Cs.
We understood that Thomas Cook was promoting a prize draw where the winning prize was a £5000 gift card. Participants were required to film and mimic the flamingo/giraffe “strut” (as shown in the Thomas Cook TV ads) and submit their video on one of Thomas Cook’s social media platforms.
We looked at the full T&Cs Thomas Cook provided and noted that they applied to entries made via Twitter and on one of their other social media platforms.
Under the CAP Code, promoters were required to disclose a prominent closing date, if applicable, for submissions of entries. This was because it was regarded as a significant condition to a promotion where the omission of such information was likely to mislead participants. However, we noted that the promotional tweet did not include the applicable closing date for entries made via Twitter (19 June 2017).
We understood that Thomas Cook had unpinned the promotional tweet on the closing date. However, we considered that because it was still possible for people to see it and given no closing date was shown in the tweet, they were likely to assume that the prize draw was still open via the Twitter entry route and would proceed to make their video before realising that they would not be able to submit it.
The CAP Code also stated that participants must be able to retain conditions or easily access them throughout a promotion. However, we noted that the link to the full T&Cs shown in the tweet did not work throughout the promotion.
Whilst the CAP Code did not prohibit the promotion of a prize draw on two different platforms with different closing dates, we considered that this information was significant for participants to clearly understand that two closing dates applied to the prize promotion and the one that applied was dependent on the method of their entry. Therefore, we considered that along with stating the closing date for Twitter entries, the tweet also should have made clear that there were two entry routes available with different closing dates that applied. For instance, the tweet could have stated “Enter via Twitter or … closing date for Twitter entries 19/06/2017”. This could have been included in some graphical content featured in the tweet, so as to save Thomas Cook some characters when typing out the text in the tweet. Consumers could then have clicked on the link to the full T&Cs, which explained the two different entry routes available with their respective closing dates.
Therefore, because the tweet did not include a closing date for submission of entries made via Twitter, did not have an operational link to the full T&Cs or make sufficiently clear that two closing dates applied to the prize promotion which depended on the method of entry chosen, we considered that the advertised promotion had not been dealt fairly and honourably with participants and concluded it breached the CAP Code.
The promotion breached rules 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 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. and 8.14 8.14 Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint. (Promotional marketing), 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: 8.17.4.a 8.17.4.a A prominent closing date, if applicable, for purchases and submissions of entries or claims. Closing dates are not always necessary, for example: comparisons that refer to a special offer (whether the promoter's previous offer or a competitor's offer) if the offer is and is stated to be "subject to availability"; promotions limited only by the availability of promotional packs (gifts with a purchase, extra-volume packs and reduced-price packs) and loyalty schemes run on an open-ended basis (Significant conditions for promotions) and 8.28 8.28 Participants must be able to retain conditions or easily access them throughout the promotion. In addition to rule 8.17 8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include: prize promotions must specify on all marketing communications or other material referring to them, the following information, clearly before or at the time of entry, where the omission of any of the specified items is likely to mislead. (Prize promotions).
The ad must not appear again in its current form. We told Thomas Cook that their future prize promotions must include an operational link to the full T&Cs, the closing date for submitted entries and make sufficiently clear whether the closing date varied according to the method of entry chosen.