The ASA has ruled that a competition was not administered properly because the promoter, Mondelez, refused to give the name of a judge when requested.
A website promotion offered consumers the chance to design their own chocolate bar. Its terms of entry provided that the initial entries would be ruled by another company called PromoVeritas, and the final shortlist of entries would be reviewed by a separate expert panel of judges (including one independent judge) to select three finalists.
The complainant requested the full names of the judges on the panel but was not provided with them, so they challenged whether the promotion breached the CAP Code.
The promoter said that due to staff absence at the time of the complainant’s request, they had been unable to obtain consent to share the internal judges’ personal information at the time the complaint was made. They said that they had provided the complainant with PromoVeritas’s information. They had also provided the job titles of the internal judges, which they believed adequately showed that those individuals were qualified to act as judges for the promotion and complied with data protection legislation. They believed that providing the judges’ names would not have provided any additional clarity regarding their independence.
The CAP Code provides that promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. In particular, it states that for competitions, if the selection of a winning entry is open to subjective interpretation, an independent judge or a panel that included one independent member must be appointed. Their full names should be made available on request.
The ASA said that consent should have been sought before the promotion started to release the judges’ names, so that the promoter could comply with the requirement of the CAP Code, if a request was made. If any internal judge had not given their consent, the promoter should have appointed a different judge to the panel in their place. However, this was not done, and consent was only sought in response to the complainant’s query once the promotion was running.
Therefore, the promotion breached the rules on promotional marketing, administration and prize promotions in the CAP Code. The ASA said that promoters must be able to provide the full names of the judges on request in similar competitions.
There are two key takeaways here.
1: The ruling illustrates the importance of ensuring that the proper arrangements are in place with all judges before the start of the promotion. Failing to do so means the promoter has almost certainly failed to administer the promotion properly and will find itself in a catch 22 situation later on when faced with the choice of breaching the CAP Code by refusing to disclose the name of the judge, or breaching data protection laws by disclosing the name of the judge without their consent.
Whilst not the case here, it is worth pointing out that promoters are all too often not aware of the need for an independent judge or believe that the independent judge can be a brand ambassador or anyone who is not an employee of the brand. This is not necessarily the case – the person needs to be genuinely independent and they may not be where there is a commercial relationship between the brand and the individual. Serious consideration needs to be given to the selection of the independent judge before the promotion starts.
2: This ruling does raise the question as to whether this issue is properly regulated in the CAP Code. After the GDPR came into force, the CAP Code was changed to allow prize winners to object to the amount of personal data being provided to other entrants, but on the understanding that their details must be provided to the ASA on request to enable the ASA to assess compliance with the Code. Shouldn’t the same rule apply to judges, for example because they don’t want to be hounded on social media? That would protect the privacy of the judge, whilst also achieving the level of transparency required to enable the promoter to demonstrate compliance – and the ASA to do its job.
In view of that second point, this decision seems quite hard on Mondelez. We hope that a suitable change will be made to the CAP Code that balances the need for integrity in the administration of promotions with the data protection rights of individual judges, particularly when they are employees of the promoter, rather than celebreties being paid a fee.
We considered that because Mondelez had not taken steps before the promotion had started, including setting up the necessary GDPR mechanism, in order to comply with the requirement to release the name of the competition judges on request, the promotion had breached the Code