In case you missed it, just to flag that, at the end of March, following a seven week consultation last year, the ASA has now amended CAP Code rule 8.28.5 dealing with publication of winner details. (See our previous post about the consultation here). This amendment will require a tweak to any template t’s & c’s that promoters have been using previously – see below for details.

Background

The rule, as previously drafted, stated that promoters must either publish, or make available on request the full name and county of all major prize winners. (The rationale being to ensure entrants felt the promotion had been run fairly as required by Rule 8.2). It also required promoters to obtain entrants’ consent to this publicity at the point of entry. In practice, the rule meant that agreement to publication of this personal information was a condition of entry into the promotion. The consultation was held to ensure that the CAP rules aligned with the higher standard of consent introduced by the General Data Protection Regulation (EU 2016/679, the GDPR) i.e. consent must be freely given and it must now be possible to withdraw this consent.

The rule change

The rule now states (see here) that promoters must  (emphasis added):

• Provide “information that indicates that a valid award took place – ordinarily the surname and county of major prizewinners and, if applicable, their winning entries” – as before, this can be published or made available on request.
• “inform entrants “at or before the time of entry of their intention to publish or make available the above information and give them the opportunity to object to this or to reduce the amount of information published or made available.” (Note – that the promoter must still provide this information and winning entry to the ASA if challenged).

The rule concludes, by flagging that publication of personal information must not prejudice prize winner privacy and in limited circumstances promoters may need to comply with a legal requirement not to publish such information. (The example given is National Savings.)

What does this mean for promoters?

This is a slightly surprising outcome. As readers may remember, the ASA decided not to enforce the rule during the consultation period. However, following the consultation, instead of removing the requirement as seemed likely, the rule has been retained but with amendments. Accordingly, promoters are required to publish or make available the surnames and counties of major winners unless winners object entirely or ask for a reduced amount of information to be published. (Eitherway, promoters must keep a record of these details in case there is a challenge to the fairness of the promotion and the ASA wants to investigate.)

When drafting terms and conditions for prize promotions, promoters should make clear to entrants that their surnames and county may be published or made available and provide them with a mechanism to object to this or to reduce the amount of information published/made available, such as a tick box or some other functionality as part of the entry process.

For further information, please contact John Wilks (Partner, London), Claire Sng (Senior Associate, London) or Ella Castle (Associate, London).