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28/09/2018

GDPR actually reduces administrative burden (in a really limited way!)

If you ever carry out prize promotions, you will know that the CAP Code (that is the Committee of Advertising Practice’s UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing) needs to be considered for non-broadcast promotions so that your promotion remains legal and above board.

Rule 8.28.5 of the CAP Code requires that the promoters of a prize promotion must either publish or make available the name and county of major prize winners. However, CAP has now stated that pending the introduction of changes to the CAP Code to reflect the requirements of GDPR, the Advertising Standards Authority (CAP’s supervising body) will not be administering that particular rule regarding publishing the name and county of major winners.

The background to this is that that rule also requires that a promoter obtains entrants' consent to such disclosure of their name and county in the promotion’s T&Cs, that consent to be obtained at the time of entry. GDPR has, of course, introduced new, tighter rules on consent. For example, consent must be freely given and so requiring consent to this nature of data processing as a condition for the performance of a contract, even when that data processing is not necessary, is problematic. The additional issue is that promoters may find it hard to ensure that an entrant’s consent meets all of the stringent GDPR requirements and entrants would be free to withdraw their consent at any time and would have to be informed of this right. This is quite an administrative burden to something that is meant to be fun.

CAP has stated that is consulting on changes to its rules on the collection and use of data for marketing. So, until we know what the new CAP Code contains in terms of the collection and use of data for marketing, the ASA is not going to enforce the rules that require the name and county of winners to be announced or made available. Therefore, if you do run prize promotions and for the time being, this statement/requirement can be removed from promotional T&Cs that you may have. Whether it is going to be replaced by something else (such as some legal basis other than consent to announce/make avaialble this information), we cannot say as yet. If you wanted to be seen to be complying with the spirit of the “current” Code, you could opt to seek consent from the actual winner, after they have won and only announce the winner if such consent is obtained (or make the name and county available should it actually be requested), although that would not need to be in the promotion’s T&Cs.

We are able to prepare CAP Code-compliant prize promotion terms and conditions and we’d love to help you out on any such projects you may have. Contact Chris Taylor if you want to discuss further.