We have a bit of a bugbear for online competitions that blatantly flout the legal requirements set by the Advertising Standards Agency. Actually that’s putting it mildly. They really, really bug us.
You only have to scan your Twitter stream and we can guarantee that you will come across at least one blogger or brand that really need to wise up. Not being aware of the legal requirements or presuming that you are exempt simply doesn’t cut it. It does apply to you and it’s bad practice that could get you into hot water if you are caught.
We have a guest post for you today from Cybher’s competition guru’s SPARK AND FUSE. What they don’t know about comps and giveaways quite frankly isn’t worth knowing.
If you’ve ever given away ANYTHING no matter how small on one of your online networks then you need to read on and take heed.
SPARK AND FUSE
Every day dozens of poorly executed prize promotions appear online and while you may not think it matters how you conduct a competition or prize draw, the consequences of getting it wrong can be serious. Generally a lack of knowledge or understanding of the regulations that need to be followed are the reasons for such thoughtlessness however there are also promoters guilty of flouting the rules while some wrongly assume that their prize promotion is exempt from any regulations.
All UK marketing communications must be legal, decent, honest and truthful. It doesn’t matter where they appear, be it print, websites, Twitter, blogs – they must all meet this criteria. And yes, your prize promotion might only be a bit of fun but it’s still absolutely a marketing communication and it must adhere to the regulations. There are number of regulations and laws of which you must be conscious before putting together your prize draw or competition.
The official rule book
First up, your prize promotion must adhere to the CAP code (the UK Code of Non-broadcast Advertising, sales promotion and Direct Marketing). This is a rule book structured by The Committee of Advertising Practise which sets out how to conduct a prize promotion properly and it’s recognised by Government, office of fair trading and courts as the established means of consumer protection in non-broadcast media.
The CAP code is enforced by the Advertising Standards Authority whose remit covers all media in both paid and non-paid for space and, take note, digital space – this basically means all prize promotions everywhere – in print, in adverts, on your website, even Facebook pages, Twitter, Pinterest and blogs.
If a consumer believes that a promotion has breached the CAP code, they can (and believe us, they do) complain to the ASA. Upheld complaints are made public on its website (ouch), larger companies can have trading privileges revoked, and repeat offenders could find any Google search in their name is directed straight to the ASA complaint or even their paid for search ads revoked.
Competition or prize draw?
When you start planning your prize promotion, it’s important that you understand that there is a difference between a competition and a prize draw. If there is a substantial element of skill – it’s a competition. If it’s a game of chance, that is you’re randomly picking winners, then it’s a prize draw.
Don’t call it a competition if actually all you’re doing is asking people to email their name and address and then conducting a random draw – this is a straight prize draw and should be named appropriately. If you’re asking customers to upload a photo and these photos are being judged to determine the winner, it’s a competition and you should call it so.
The difference between and competition and a prize draw can be an issue of legality under The Gambling Act 2005. If you run a prize promotion based on chance it’s acceptable to ask UK residents to purchase a product to enter, but you cannot inflate the price of that product or simply charge an actual fee for people to enter. Asking people to pay for the opportunity to win a game of chance is a lottery, which requires a license, run a prize draw as described and it’s an illegal lottery which is a criminal offence. You must include a free route of entry to counter act this inflated cost. Take note that entry by a premium rate phone lines or texts (even a 25p rate) are also inflated prices and would be illegal without an additional free means to enter.
If you want to charge people to enter, then you must run a competition – or as defined by the act – a game of skill – and this must be an actual, genuine element of skill. Tie-breakers and creative competitions are both fine. Even multiple choice questions are acceptable providing there are no joke answers, and an element of research to find the answer is required.
There are a number of online competitions that ask people to ‘leave a comment’ to enter and from which the promoter or owner of the website will choose the ‘best’ or ‘their favourite’ as the winner. This is not acceptable under the CAP code. You must include clear judging criteria so entrants understand what the judges will be looking for and therefore have a fair chance of winning. If you’re planning a photography competition, for example, are you judging on technical merit, or composition or just content? If a number of great shots are submitted what will be the deciding factor? The ‘best entry’ or ‘our favourite entry’ isn’t specific enough for it to be judged fairly.
When selecting winners of a competition, the CAP code stipulates that you must include at least one independent person in the judging process. An independent person cannot be anyone that works for you or with you, it can’t be the intern, your spouse or your mum. This person must have no vested interest in the outcome and should be qualified in some way to judge the competition. For example if it’s a recipe competition, ask a local chef to act as your independent person.
If you’re running a prize draw or a giveaway, it’s also essential the actual draw is conducted correctly. The CAP code is explicit that this must be in accordance with the laws of chance and either by using a computer process that produces verifiably random results, or by an independent person, or under the supervision of an independent person. There are many online random generators, the most commonly used is random.org – however only its paid for service is verified. Recently the ASA upheld a complaint about a Twitter promotion whereby the promoter had written all entrants’ details on a piece of paper and then a member of staff had selected a winner.
Most promoters are blissfully unaware that Facebook has its own regulations and even really big companies often breach its terms. Firstly you cannot run a giveaway or competition on your Wall. Facebook stipulates that you must use a third-party application to build and administer your promotion. Once you have built a prize promotion platform or tab, the only Facebook functionality you can ask customers to use as registration for this platform is liking it, checking in or connecting to it. Liking your page or leaving a comment on your wall cannot be an entry. You can ask people to like or leave a comment as part of the entry process but it cannot be the actual means of entry – they must leave their entry details via the platform. Otherwise how can you tell the difference between someone just liking the page because they like you, or someone liking it to enter the draw? Be mindful, as Facebook states that it will shut down any page that breaches its terms so think carefully before launching a competition on your wall.
Now you have a better understanding of how to conduct your prize promotions, here are some practical tips for putting together some terms and conditions that will protect you from falling foul of the CAP code. Terms and conditions are there to protect you as well as the consumer. Never copy them from someone else’s website or assume anything that looks really ‘legal’ is correct, in fact the CAP code states that complex rules must be avoided.
Always include a closing date. Not the date when you will conduct a draw but the actual date by which entries must be received. Include a time so it’s absolutely clear. And then stick with it. Don’t change it once it is live even if you didn’t get the response you wanted. The Driving Standards Agency recently moved a closing date by 24 hours which resulted in an upheld complaint by the ASA. Categorically do not conduct a draw using any entries which were received after the closing date. Remember, that for Twitter, Pinterest and Facebook, consumers can easily see the date and time a winner entered and will know if you award a prize to someone entering after the closing date.
State what the prize is and how many are available – it might sound obvious but you’d be surprised how many promoters don’t actually include this detail.
Cover off any necessary restrictions, such as age or geographical location. Do you want to restrict entries to UK residents only? Consider the cost and logistics of sending the prize to the winner if it turns out they live, for example, in Hawaii. If you decide to run your prize promotion on a global scale, be aware that every country (and in the US, each state) has its own set of rules and regulations. You must also exclude immediate family of yourself and the promoter, and anyone else professionally connected to the prize promotion, such as the PR agency or company providing the prizes.
Include terms specific to the actual prize. For example, if you’re offering the chance to win a fabulous trip to Paris, remember to include exactly what the prize does and doesn’t include. Make sure everyone entering the prize draw is aware of any costs they’d need to cover if they win. It is always worth playing devil’s advocate and consider your promotions from a winner’s perspective, what might they expect to be included in the prize?
Decide who the promoter is and include details. It could be you, the prize supplier or your client. You should consider this carefully as the promoter is accountable if anything goes wrong or if someone complains to the ASA.
Tell entrants how and when winners will be notified of their win. The CAP code stipulates winners must be notified within 28 days – and then there should be an additional 28 days where you try to contact them again. Always manage winner’s expectations. If you notify a winner but can’t send them their prize for another four weeks, then let them know. There’s nothing more disappointing or frustrating for a winner than having to chase up their prize. It somewhat takes off the gloss of winning and makes them feel less in harmony with your brand than the original intention. And it’s likely the winners will make their disappointment public using social media.
Unless you have stipulated in your terms and conditions that a prize may be withdrawn (and the circumstances for this would need to be absolutely defendable), never withhold a prize. Just the other day a blogger contacted us to say a prize supplier who’d given away vouchers on her blog was now withholding the prize because the prize winner had been a touch rude.
We’re going to end this post with a quote from the CAP Code. As compliance geeks, we think it sums up nicely what promoters should bear in mind when running promotions:
‘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.’ CAP Code, Edition 12.
If you’d like any further advice on running a prize draw or competition, there’s lots more information on our website www.sparkandfuse.com, we’re on Twitter @sparkandfuse or you can email us at firstname.lastname@example.org