Did you notice that the CAP Code has just been revised? No? Perhaps you were too preoccupied with whether Joe Suggs and his partner Dianne Buswell would make it through to next week’s show at Blackpool’s Tower Ballroom (they did). However, Strictly aside, on Friday the Committee of Advertising Practice (CAP – you see why it’s called the CAP Code now, don’t you), which is the sister organisation to the Advertising Standards Authority (ASA), announced that it has introduced new rules on the use of data for marketing.
This is the result of a consultation and is essentially in response to the General Data Protection Regulation (GDPR), which came into effect way back in May this year (I know – doesn’t time fly!). The updates take out some of the more general data protection rules and replace them with rules more specifically related to data protection and marketing.
Anyway, that’s all well and good, and the ASA has produced a handy set of five top tips on how to keep on the right side of the new rules on handling data for marketing purposes, but what I’m more interested in is an aspect of the CAP Code related to prize promotions and data protection for which there is currently no rule (yes, you read that correctly).
I’m talking about winners’ lists. Now before GDPR came into effect earlier this year I conscientiously collared every expert I could find, and discussed winners’ lists with them. My conclusion was that promoters should continue to publish winners’ lists, firstly, because they had to in order to comply with the CAP Code and, secondly, because it was undoubtedly prize promotions best practice and providing individuals couldn’t be identified, GDPR shouldn’t make a difference to that. I blogged about this here.
However, what seems to have happened is that during the consultation on the use of data for marketing purposes, CAP decided that there were some issues around the lawful basis for publishing the details of prize-winners after all, so it has launched a further consultation.
What the CAP Code used to say was that promoters had to publish or make available on request the name and county of people who had won a substantial prize, but that those people shouldn’t be ‘compromised’ by the publication of this information.
It has occurred to CAP, though, that GDPR does require winners to consent to the publication of that basic personal information, to give their consent freely and to be able to withdraw it any time. The current CAP consultation suggests that asking entrants to consent to the inclusion of their details on a winners’ list can be done with an opt-in at the point of entry and can be explained in the terms and conditions of a prize promotion, but it can’t be a condition of entry.
That seems fair enough to me, but what if an entrant actually wins and then wants to withdraw their consent to appearing on a winners’ list, particularly if that occurs after the winners’ list has been published? This is where it might get sticky, but CAP makes a suggestion on that front. Under GDPR, promoters don’t have to use consent as a basis for processing if another basis for processing is open to them and CAP points out that, with certain provisos, promoters might appropriately rely on legitimate interests.
So the key points of the consultation as far as I can see are that, firstly, CAP does not consider that GDPR imposes a legal requirement on promoters to never publish the information set out in the rule. There’s a double negative in there, but my interpretation is that CAP is saying that promoters should still make winners’ lists available. And secondly that, although CAP won’t commit itself to stating what the basis should be, promoters should be able to rely on legitimate interest, rather than consent, as the basis for processing winners’ list data. I have to be honest and say it would be easier if CAP was definitive about the legitimate interest basis, but I know enough about GDPR to understand that it’s very difficult to be definitive.
This consultation on winners’ lists will last four weeks, closing on 7 December, and at some point after that I guess we’ll get the reworded rule back. The ASA has stated it won’t investigate any challenges during this time of winner lists not being provided on request. And so in the meantime we are in winners’ list limbo and I’m going to find this tricky, because Prizeology is already working on terms and conditions for 2019 promotions and until the consultation is over and the revised CAP Code has been published some of our clients are extremely wary about us sending out winners’ lists on their behalf. However, I am quite clear that this temporary suspension of winners’ lists is not an excuse for failing to run a promotion properly.
So, returning to Strictly, the way in which the judges’ scores are combined with the public vote to determine who appears in the dance-off may be slightly opaque, but at the end of Sunday night’s show we always know who the winners and losers are. That’s important and that’s why a winners’ list is important, because it demonstrates that a prize promotion is genuine and that real people (or perhaps not in the case of Strictly) have won real prizes.
Apologies if this is a bit technical, but hopefully I’ve explained it adequately (and understood it properly myself in the first place!). Incidentally, if you’re interested in whether anyone ever bothers to request winners’ lists, admittedly it’s often the compers, those singular individuals who spend most of their day entering prize draws and competitions, but actually, yes, they do.
Sarah Burns is Prizeology’s Chief Prizeologist.