Bauer argues against licence breach for network competition

Ofcom has found KISS in breach for a missing Condition mention during Bauer’s networked Make Me a Winner competition despite constant references to online terms and conditions.

The complainant highlighted that the invitation to participate made no reference on a particular day to the fact that unsuccessful entries would be valid for the remainder of the competition period.

The competition ran across 23 Bauer stations, offering large cash prizes with entry via a premium rate text message between 19 April and 29 July 2022.

Bauer says it didn’t believe the accumulative nature of its Make Me a Winner competition was a significant condition. After investigation, Ofcom found that it was mentioned on 11 days of the competition, but didn’t directly tell listeners on 19 days.

Other information supplied showed that the number of eligible entrants increased considerably each competition round and there were a significant number of multiple entries who were entered into daily draws.

Bauer argued that the accumulation of entries was a mechanic of the competition which its listeners would have been familiar with, and did not believe it was correct to describe it as a condition “in the legal sense of the word”; it was not “a requirement or an obligation placed on a contracting party”; nor, did it reflect the meaning of the phrase as commonly understood.

It added that to the best of its knowledge, it had never received a complaint from a selected entrant who had failed to answer with the correct phrase within five rings because they had not understood the accumulative nature of the competition.

The Licensee also said it considered it sufficient that information about the accumulative nature of the competition was set out in the competition’s terms and conditions, which were available at all times on its website, and were referred to in every invitation that was broadcast.

But Ofcom considered that, on a significant number of occasions, listeners were not being made aware of the significant accumulative reduction in the chances of their entry being selected as the competition progressed.

Ofcom said: “In our view, without this important piece of information, listeners may have expected that an entry would be drawn only from the pool of entries received on the same day, i.e. from a much smaller pool of entries.

“We also took into account that a significant number of individuals had submitted multiple entries. It was not possible for Ofcom to determine whether these individuals were aware of the accumulative nature of the competition but had chosen to submit multiple entries to increase their chances of winning, or whether they were unaware that their previous entries were still valid.

“However, the lack of reference to the accumulative nature of the competition in a considerable number of on-air invitations to enter meant it was possible that some listeners had submitted repeat entries unnecessarily at an additional cost to them.”

Ofcom accepted that Bauer Radio had not sought to mislead listeners. However, Ofcom’s decision is that a significant condition of the competition, which may have affected a listener’s decision to participate, had not been appropriately made known, and was in breach of Rule 2.15 of the Broadcast Code.