Promoters beware: it’s not just the BCAP Code that you need to consider when running competitions on broadcast media – the Ofcom Broadcasting Code also applies.
Kiss FM is a national radio station run by Bauer Radio. It ran a competition called “Make Me A Winner” which offered listeners the daily chance to win a substantial cash prize by entering online (free) or via a premium rate number.
Each day the radio station selected and telephoned a potential winner. They had to answer within five rings and say “Make Me a Winner” to win the day’s prize. After that, unsuccessful entrants were automatically entered into subsequent draws for the rest of the competition. Therefore, the pool of entries for each draw increased as the competition went on.
A listener complained to Ofcom, saying that there was no reference to the fact that unsuccessful entries would be valid for the rest of the competition period; and so listeners would not know that their chances of winning were significantly lower compared with a standalone competition conducted on a single day.
Ofcom decided that the complaint warranted investigation under Rule 2.15 of the Ofcom Broadcasting Code, which says:
“Broadcasters must draw up rules for a broadcast competition or vote. These must be clear and appropriately made known. In particular, significant conditions that may affect a viewer’s or listener’s decision to participate must be stated at the time an invitation to participate is broadcast”.
Bauer Radio doubted that the accumulative nature of the competition was a significant condition and referred to the BCAP Code which highlights requirements such as how to participate and start and closing dates as being significant terms. It said it was a mechanic of the competition which its listeners would have been familiar with and it had not received any other complaints about it. It was set out in the terms of the promotion that were available at all times on its website. Its view was that listeners had not been misled and were fully aware of the mechanics of the competition.
Ofcom referred to its guidance on the Ofcom Broadcasting Code. It makes clear that Ofcom normally expects broadcasters to make listeners aware if participation in a competition is “spread wider (beyond the local area) than might be obvious to the viewer/listener in any one area. This should be done both on air and in any written rules, whenever the competition or its results are run”. This is to ensure listeners are made aware when a pool of potential entrants in a competition is likely to be larger than they may anticipate. As Ofcom put it, “as the size of the pool of entrants has the potential to impact on an entrant’s chance of winning, this information may affect a listener’s decision to enter a competition”.
Ofcom said that the accumulative nature of the “Make Me A Winner” competition resulted in an increasingly large pool of entrants each day, of which listeners may have been unaware when it was not made clear in the on-air invitation to participate. Crucially, this also meant that it was possible that some listeners had submitted repeat entries unnecessarily at an additional cost to them.
Although it acknowledged that Bauer Radio was confident its listeners fully understood the competition’s mechanic, Ofcom concluded that the accumulative nature of the competition was a significant condition that may have affected a listener’s decision to participate. As this significant condition had not been appropriately made known, Bauer Radio had breached Rule 2.15 of the Ofcom Broadcasting Code.
This ruling is of interest to anyone running a promotion on radio or TV. It makes clear that anything that affects a consumer’s decision to enter may be a significant condition and must therefore be highlighted prominently – and should not be relegated to the small print.
This reflects the position under the CAP Code, which applies to non-broadcast advertising. It is possible that the same conclusions might have been reached by the ASA, but it is interesting to note that Ofcom placed significant weight on the fact that the omission of the relevant information could have led to entrants incurring unnecessary costs by entering multiple times. It said the purpose of Rule 2.15 was to prevent broadcast competitions from misleading the audience in such a way as to cause material harm, such as financial loss. If the competition had been entirely free to enter one wonders whether it would have reached the same conclusion on “material harm”.
Ofcom accepted that Bauer Radio had not sought to mislead listeners. However, Ofcom’s Decision is that a significant condition of the competition, which may have affected a listener’s decision to participate, had not been appropriately made known, in breach of Rule 2.15 of the Code