Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld
Ad description
An Instagram post on cosmetics company Space NK’s own account, seen on 13 September 2023, featured a video that demonstrated their 2023 beauty advent calendar. A caption below the video stated “A COMPETITION YOU’LL WANT TO ENTER! WIN The 2023 Space NK Beauty Advent Calendar […] to enter all you need to do is Follow Space NK; Comment a [present emoji]; Tag 3 Friends; Get 0 Likes on your comment; Share to your stories for TWO bonus entries”.
Issue
The complainant, who believed that not all entrants were included in the ‘final draw’ and so did not have an equal chance of winning, challenged whether:
1. the prize was awarded in accordance with the laws of chance; and
2. the promotion was administered fairly.
The ASA challenged whether:
3. the ad breached the Code because it omitted the significant conditions of the promotion.
Response
1. & 2. Space NK Ltd said the prize draw closed at 6 pm on 15 September 2023, and that in their view adequate time had been allocated to collate entries and to determine the winner. They said there was no limit to the number of times a participant could enter by commenting on the post, but they could only earn one entry through commenting, and that any additional entries had to be earnt by a participant sharing the post on their Instagram story. To select the winner, their social media manager manually reviewed all comments on the post and shortlisted the usernames of those posters that met the entry requirements, including whether they had commented a present emoji, tagged three users, received zero likes on their comment, and followed the Space NK Instagram account. They then checked whether those entrants had earnt two bonus entries by navigating to the direct message section of their profile. Space NK said that from there it was possible to see, for both public and private Instagram accounts, when the user had last mentioned SpaceNK in their Instagram story, and that was visible once the story had expired after 24 hours. They said all participants who had mentioned Space NK in their Instagram Story received the two bonus entries. After the shortlist of entrants had been established, the names were added to an online random name generator, and a winner was selected and then notified.
3. Space NK said that all relevant significant conditions of the promotion were included in the post and consumers would understand from the text “terms and conditions apply” that the full terms and conditions could be found on Space NK’s website. They said future promotions would make that explicit and highlight that a link to their website could be found on their Instagram Bio.
Assessment
1. & 2. Upheld
The CAP Code stated that promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters of prize draws must ensure that prizes were awarded in accordance with the laws of chance and, unless winners were selected by a computer process that produced verifiably random results, by an independent person, or under the supervision of an independent person. Additionally, promoters must avoid causing unnecessary disappointment and should not give consumers justifiable grounds for complaint.
There were multiple criteria which entrants had to fulfil to enter into the prize draw: “Follow” Space NK’s Instagram account; “Comment” a present emoji; “Tag” three friends; and their comment had to receive zero “Likes”. The promotion also allowed entrants to qualify for two bonus entries by sharing the promotional post as an Instagram story.
The ASA understood Space NK had manually reviewed the post’s comments and bonus entries. The usernames of the participants who had made valid entries were then placed into a piece of online software that randomly selected a winner. We understood that this process had produced verifiably random results. However, Space NK had not provided evidence that demonstrated all valid entries at the time the promotion closed had been included before the manual review began. They had also not demonstrated the review had excluded entries that were liked after the prize draw closed but before the list of valid entries was compiled.
In relation to bonus entries, Space NK demonstrated that they could see when a public or private Instagram account had mentioned them in an Instagram story, including after the story post had expired. However, they were unable to see the content of the story and whether the promotional post itself had actually been shared. We understood that meant Space NK could only review whether a private account had mentioned them in a story post, rather than if they had shared the promotional post itself. That meant two bonus entries could have then been awarded to participants who had not necessarily met the full requirements for them. We considered that meant invalid entries could have been included in the draw.
For an entry into the draw to be valid, it had to accrue zero Likes from other Instagram users at the time the prize draw closed; participants or other Instagram users would have been able to Like a participant’s entry to disqualify it. By liking another’s comment, participants would have increased their chances of winning. However, Space NK had a responsibility to ensure that mechanic was not abused, for example, by ensuring that a situation did not emerge where all entries had been liked at the draw’s closing time and they could not award a prize. We were not presented with evidence that detailed Space NK had policies in place to prevent abuse.
Notwithstanding that, Space NK were able to demonstrate the final winner was selected via a piece of online software that produced a verifiably random result. They had not demonstrated, however, that all valid entries were included in the final draw, and that invalid entries had been excluded. Furthermore, we had not seen evidence that outlined there were terms in place to prevent the zero Likes component of the promotion being abused. We therefore concluded the promotion had not been administered fairly and breached the Code.
On those points, the ad breached CAP Code (Edition 12) rules 8.2 (Promotional marketing), 8.14 (Administration), and 8.24 (Prize promotions).
3. Upheld
The CAP Code stated that promotions must communicate all applicable significant conditions or information where the omission of such conditions or information was likely to mislead. Significant conditions may, depending on the circumstances, include: the start and closing date of the promotion; that it was open to UK residents only: and that participants could make more than one entry.
We understood the promotion ran for 48 hours after the ad was posted on 13 September 2023, closing at 6 pm on 15 September 2023, and participants could make more than one entry into the draw via the promotional post’s comment section. However, the post did not state the specific time the draw started, or the specific closing time. Additionally, the post did not state that participants could make more than one entry into the draw by posting more than one comment. We considered those were significant conditions which were likely to affect consumers’ understanding of the promotion and their decision to participate. We therefore considered their omission was likely to mislead. While the ad stated “T&Cs Apply”, it did not explicitly outline where participants or potential participants could access the conditions of the promotion. We welcomed Space NK’s assurance that they would put a hyperlink to the terms and conditions in their Instagram Bio section, and signpost where the link could be found in their ad. However, we considered that the significant conditions and the link to the full terms and conditions would need to be included in the post itself for future promotions.
As the ad had omitted significant conditions, we therefore concluded the promotion breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 8.17, 8.17.1, 8.17.3, and 8.17.4 (Significant conditions for promotions).
Action
The promotion must not appear again in the form complained of. We told Space NK Ltd to ensure that future promotions were administered fairly and were not designed in a way that was open to abuse. We also told them to ensure their future promotions included all significant conditions.
CAP Code (Edition 12)
8.2 8.14 8.17 8.17.1 8.17.3 8.17.4 8.24
