The ASA has issued an upheld ruling against a promoter for failing to publish winner details following a prize promotion. 

We love a niche ruling like this, because they don’t come along very often and it’s a good chance to explore some of the dustier corners of the CAP Code.

So what does the CAP Code have to say?

The CAP Code requires promoters to either publish or make available information that indicates that a valid award took place and to provide that information to the ASA if challenged. This is usually the surname and county of major prize-winners and, if applicable, their winning entries. 

This rule is all about transparency. It’s there to make sure promoters are accountable and can demonstrate that there were real prizes and – importantly – real people who won them. It’s a rule that has seen a few changes over the years, primarily to adapt to the new data protection rules brought in by the GDPR a few years ago. 

It involves a bit of a balancing act, because the promoter must prove that prizes were awarded without prejudicing the privacy of the prize-winners whose personal information is being disclosed.  This might happen if someone had a really distinctive name but, in that case, instead of publishing Lewis Silkin, Hertfordshire, it might be acceptable to say LS, Hertfordshire.

The ruling we are discussing today relates to an Instagram promotion run by women’s clothing brand Nasty Gal. Two entrants complained that no announcement confirming the winner had been published, despite requests from Nasty Gal’s followers for that information, and they challenged whether the promotion had been administered fairly.

Nasty Gal said they replied to the winner’s comment on the post to announce them as the winner of the promotion. They confirmed that their comment was the only manner in which the winner was announced.

The winner was not announced through any other mechanism. The ASA said this could have been done, for example, by editing the caption of the post so that Instagram users could re-visit the post to see that a winner had been selected.

The ASA also noted that there were thousands of comments on the post, which meant that users were extremely unlikely to know that a winner had been announced without clicking into and looking at the comments section below the post. Instagram’s algorithm could not be relied upon to ensure Nasty Gal’s comment was one of the top comments and therefore easily accessible to entrants. Even if that had been the case, a user would still have needed to interact with the post and scroll through at least the first few comments to see that a winner had been selected.

Some users had commented on the post asking if a winner had been announced, which the ASA considered further suggested that replying to the winner directly, on a post with thousands of comments, was not a sufficient way of announcing that a valid award had taken place. The ASA concluded the promotion had not been conducted fairly and that it breached the CAP Code.

The entirety of  Rule 8.28.5 is as follows:

“Promoters must either publish or make available information that indicates that a valid award took place – ordinarily the surname and county of major prize-winners and, if applicable, their winning entries. At or before the time of entry, promoters must inform entrants of their intention to publish or make available the information and give them the opportunity to object to their information being published or made available, or to reduce the amount of information published or made available. In such circumstances, the promoter must nevertheless still provide the information and winning entry to the ASA if challenged.  The privacy of prize-winners must not be prejudiced by the publication of personal information and in limited circumstances (for example, in relation to National Savings) promoters may need to comply with a legal requirement not to publish such information.”

The upshot of this is that the rules of the promotion should explain that the promoter will publish winner details or will otherwise make them available on request, and should also give winners the opportunity to object to this disclosure or request that the information being disclosed is limited in some way. Promoters who do not do this can find themselves between a rock and a hard place when someone emails in asking who won.

While we are on the subject of niche rulings, it’s worth pointing out that a similar rule applies in the case of judges. Rule 8.26 requires (among other things) that:

“Those appointed to act as judges should be competent to judge the competition and their full names must be made available on request.”

This is another rule that is rarely tested but can undo all the good work of a promotion. We can point to one ruling on this point, which is relatively recent. In fact, we’ve written about it previously here. In that case, the promoter didn’t have permission from the judge to disclose their details and yet had an obligation to do so.

As this and the latest ruling demonstrate, promoters must make sure they are aware of all the rules, and make sure they’ve anticipated them both in the written rules and behind the scenes…