Ad description
An Instagram post by @nastygal, seen on 3 December 2023, featured an image of a woman on the phone, with text stating “$1000 Cash. That’s hot”. The caption on the post stated “12 days of Christmas Giveaways” Day 3 of #Nasty12DaysofChristmas Win a $1000 CASH. To enter simply: 1. Follow Nasty Gal. 2. Like this post. 3. Leave a comment with a [flying money emoji]. 4. Tag a friend for an extra entry. Winner announced 12.10.23. T&C’s apply. #NastyGalsDoItBetter”.
Issue
The complainant, who understood that no announcement confirming the winner had been published despite requests from Nasty Gal’s followers for that information, challenged whether the promotion had been administered fairly.
Response
Nasty Gal Ltd confirmed that the announcement date for the promotion was scheduled for 10 December. They said the exact date that a winner was announced could not be ascertained due to the time elapsed since the promotion was run. They said they had direct correspondence with the winner from around 11 December and internal emails from 12 December concerning the processing of the prize, meaning it was highly likely the winner was announced within the specified time period.
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. They believed that announcing competition winners via the comments section was standard practice for influencers and those within the fashion industry on social media. They understood that the algorithm used by Instagram to order comments on a post prioritised comments based on audience size, interaction, and author status. Nasty Gal said that their account had 4.5m followers, all entrants had interacted with the post, and Nasty Gal was the author of the post itself. They therefore believed the comment announcing the winner would have been extremely likely to show up in the top ten comments on the post when viewed by entrants. They believed an entrant would have visited the post, seen the caption which stated that the winner was announced on 10 December 2023, opened the comments, and seen almost immediately that the winner had been announced. They added that there was currently no guidance which stated that competition winners could not be announced via the comments section. They also said all entrants had access to the T&Cs which they believed clearly set out how and when the winner announcement would take place.
Assessment
Upheld
The CAP Code required promoters to either publish or make available information that indicated that a valid award took place and to provide that information to the ASA if challenged.
The ASA acknowledged that Nasty Gal believed that through replying to the winner’s valid entry comment in the comments section of the post they had announced the winner and therefore satisfied the relevant requirement of the Code. We understood that the winner was not announced through any other mechanism, 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.
We understood that there were thousands of comments on the post, which we considered meant Instagram users were extremely unlikely to know that a winner had been announced without clicking into and looking at the comments section below the post. Although we acknowledged that the algorithm used by Instagram to order comments considered a variety of factors, we considered it could not be relied upon to ensure Nasty Gal’s comment was one of the top comments and therefore easily accessible to entrants. We also considered that, even if that were 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.
We also understood some users had commented on the post asking whether or not a winner had been announced, which we 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.
Because Nasty Gal had not published or otherwise made available information which clearly announced that a winner had been selected, we concluded the promotion had not been conducted fairly and that it breached the Code.
The promotion breached CAP Code (Edition 12) rules, 8.2 (Promotional marketing) and 8.28.5 (Prize promotions).
Action
The promotion must not be run again in the form complained of. We told Nasty Gal Ltd to ensure in future promotions they clearly publish or make available information to indicate that a valid award has taken place.
