Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants.
The requirements for independent observers and judges are there to ensure that these prize promotions are administered properly, and can be seen to have been administered properly. They mean that participants can have confidence in the promotion’s integrity and offer the promoter protection as well. A promoter who can provide evidence from an independent judge or observer will be in a stronger position to respond should the ASA investigate complaints that a promotion is unfair.
Whether it is necessary to have an independent person, and what would be considered suitably “independent” depends on the circumstances and on whether a prize draw or a competition is being run.
When is an independent observer necessary for a prize draw?
Who will be considered independent for a prize draw?
When is an independent judge necessary for a competition?
Who will be considered independent for a competition?
Who isn’t independent?
When is an independent observer necessary for a prize draw?
Prize draw winners must be chosen in accordance with the laws of chance, i.e. the winner needs to be drawn at random (rule 8.24). This can be done by using a computer process that produces verifiably random results. Stating that a random process was used without providing evidence will not be sufficient (Hard Rock Café, 11 February 2015). The ASAupheld complaints about a prize draw because, although the promoter explained that they had randomly selected a shortlist of 100 participants from a hat, and that they selected the final winner randomly from this shortlist, they provided the ASA with no evidence to demonstrate that this was the case (Molly-Mae Hague, 3 March 2021). See also wisemove.co.uk 5, March 2014 and ZX Recruitment, 23 July 2014.
Computer processes can be relatively straightforward to substantiate, for example, the ASA has ruled that screenshots of a spreadsheet using a random function formula can be appropriate (Present Minded, 18 June 2014).
If such a computer process isn’t used, then the draw should be done, or supervised, by someone independent, and marketers must have evidence to demonstrate that this was the case.
Who will be considered independent for a prize draw?
Where an independent person is used, this person must be demonstrably independent, especially from the competition’s promoters and intermediaries, and from the pool of entrants from which the eventual winner is picked.
Members of staff are unlikely to be considered independent. Complaints about a promotion in which the prize winner was selected by a member of staff scrolling through the post’s comments and selecting one manually were upheld by the ASA, because a member of staff was not considered an independent person (Bellatricks Ltd, 01 September 2021).
Complaints about a prize draw run on Facebook challenged whether the winner selection was random, on the grounds that al the winners were the promoter's freinds. The advertiser said that the winners of the promotion had been selected at random by the Sales and Marketing Manager, however, because they did not provide any evidence to demonstrate that the winners had been selected under the supervision of an independent person, or that they had used a verifiably random computer process the ASA concluded that the promotion breached the Code (Asha's Restaurants International Limited, 20 December 2017) .
When is an independent judge necessary for a competition?
If the selection of a winning entry is open to subjective interpretation, there should always be an independent judge (rule 8.26). If there is only one judge, they need to be independent. Where there is a panel this should include at least one independent member.
The judge or panel member must be demonstrably independent, especially from the competition’s promoters and intermediaries and from the pool of entrants from which the eventual winner is picked.
Those appointed to act as judges should be competent to judge the competition and their full names must be made available on request. Paying a fee to someone to act as an independent judge would not in itself be considered to compromise their independence.
The ASA ruled that a promotion was unfairly administered and breached the Code where the promoter did not provide details of the independent panel of judges (Rebecca Penny t/a Bridleworks 28 January 2015).
Who will be considered independent for a competition?
In a competition to win 'Property Woman of the Year' the promoter was able to satisfy the ASA that two of the three judges it used were independent: one was an editor of a national newspaper and the other was the chairman of an unrelated trade association (Bradford & Bingley plc, 9 July 2008).
Trading Standards officers, auditors, solicitors, or a representative of the promoter’s trade association or similar are likely to be considered appropriate, provided they are demonstrably impartial and unconnected to the running of the promotion. In 2015, complaints about a promotion which used an external organisation which was contacted on an ad hoc basis to randomly select winners were not upheld (Rebecca Garret Media Ltd t/a Winning Moments, 16 December 2015).
Who isn’t independent?
It is unlikely that employees of the promoter, or any sponsor who has provided a prize, would be considered independent. Complaints about a competition run by Weleda UK wer upheld by the ASA because the judging panel was made up of three Weleda employees, and there was no independent person present (Weleda UK Ltd, 2 May 2018).
The ASA considered complaints about a promotion which was cancelled by the advertiser on the grounds that all of the entries recieved were poor quality. Because the entry the criteria for the promotion were not clearly set out, and because no independent judge or panel had been involved in the entry assesment, or decision to award the prize, the complaints were upheld (Abellio East Midlands Ltd t/a East Midlands Railway, 22 Sept 2021).
It is also unlikely that marketing agencies who have worked on campaign, or lawyers who have advised on it, would be considered independent.
See also Promotional marketing: Prize winners, Promotional marketing: Abuse, Promotional marketing: Prize draws in social media, Promotional marketing: Terms and conditions, Promotional marketing: Competitions.