Broadly speaking, as most people working in this area (hopefully) know, the main rule book to consult in the UK is the CAP Code. Although, you might also need to consider data protection, various consumer protection regulations, and even the Gambling Act 2005.
The CAP Code contains the various rules for running prize draws and competitions in Section 8. However, the fact that the prize draw or competition is being run online can add a few extra risks and headaches.
If the promotion is being run on Twitter, there’s the obvious character limitation issue. However, it’s interesting that the ASA have been quite pragmatic about this. Last April they published an adjudication about a Rio Ferdinand prize draw where they held that all the significant terms and conditions had been contained in a series of tweets – without needing a link to any long form terms and conditions. This might feel a bit counter-intuitive for lawyers whose instinct is for long-form comprehensive T&Cs to be hosted on a website linked to from all promotional materials. However, in practice, for the purposes of the CAP Code at least, the significant conditions contained in Section 8 are all that’s required and these can be covered off in a few carefully drafted tweets.
If the promotion is being run on Facebook then there are the Facebook Promotions Guidelines to grapple with. The main things to be aware of are that the T&Cs need to include (i) a release of Facebook, (ii) an acknowledgment that the promotion isn’t endorsed or associated with Facebook, and (iii) a statement that entrants are providing information to the promoter and not to Facebook.
One of the more confusing requirements Facebook imposes is that you can’t condition registration or entry upon the user taking any action using any Facebook features or functionality other than liking a Page, checking in to a Place, or connecting to your app (e.g. you can’t condition registration or entry upon the user liking a Wall post, or commenting or uploading a photo on a Wall). You also can’t use Facebook features or functionality as a promotion’s registration or entry mechanism (e.g. the act of liking a Page or checking in to a Place can’t automatically register or enter a promotion participant). Another restriction that I’ve come across a few times is the prohibition on using Facebook features or functionality (such as the Like button) as a voting mechanism for a promotion. Facebook also doesn’t allow you to notify winners through Facebook, such as through Facebook messages, chat, or posts on profiles (timelines) or Pages.
Online competitions also offer an easy opportunity to incorporate a voting mechanism into the promotion which could be seen as a good way of facilitating “engagement”. However, vote-manipulation issues can be a problem with online competitions where the winner is selected based on a public vote.
In January this year, Mercedes got into a bit of a pickle which ended up in an ASA adjudication. They’d run an online competition where entrants submitted a video and the winner was selected by an online public vote. Mercedes discovered that some of the finalists had been incentivising voters by offering to pay for their votes via third party websites. On discovering this, Mercedes suspended voting and disqualified them to prevent the result of the competition being unfairly influenced. Mercedes also amended the T&Cs to add a clause reserving the right to disqualify finalists if it had reason to believe that any of the votes had been paid for or inappropriately incentivised etc. Unfortunately, after it reopened the vote, Mercedes then discovered that another of the finalists had used websites that allowed her to exchange votes with people participating in other competitions. That finalist claimed she’d emailed Mercedes to check whether this was ok but got no response – in fact her email had gone to Mercedes’ spam folder. Therefore, when she was also disqualified by Mercedes, unsurprisingly, she complained. The ASA upheld her complaint and concluded that she had justifiable grounds for complaint when she was disqualified for engaging in practices that were not prohibited in the original T&Cs.
The Co-op experienced a similar issue a few months later in a March adjudication which related to a competition they’d run on their Facebook page. The competition involved entrants designing a sandwich, six of which were selected to appear on a microsite where the public could vote for their favourite entry. Co-op had used cookies in an attempt to track the votes of individual internet users. The problem is that this system is open to abuse, because, by disabling or clearing their cookies, it’s possible for individuals to vote multiple times thereby unfairly distorting the votes (i.e. an entrant’s mum could vote for him/her 100 times etc). One of the entrants complained that the winner of the competition had received multiple votes from the same individual. The ASA concluded that the competition had been administered unfairly because the cookie-based tracking was not sufficiently robust to ensure that the “one vote per person” rule could reliably be enforced.
In both the Mercedes and Co-op examples above, by the time of the adjudications, the competitions had, in fact. ended and the ASA could only tell them to ensure that future competitions were administered effectively. However, you can be sure that the headaches caused by the complaints and correspondence with the ASA is something that both parties would rather have avoided. Not to mention the inevitable legal fees involved in getting advice on how to handle the matter!