April 1, 2019

Following public consultation, CAP has introduced changes to its rules on naming prizewinners and the use of children’s personal data for marketing to ensure they are aligned with the Data Protection Act 2018 and General Data Protection Regulation (2016/679/EU).

CAP received no responses challenging its proposal on marketing to children and one response that challenged the wording of the proposed amendments to its proposal on naming prizewinners.

CAP consulted on the following changes to rule 10.15 to reflect that, under the Data Protection Act 2018, the circumstances in which children’s consent can be relied on in relation to the offer of online services are limited, and to provide, after informal discussion with the Information Commissioner’s Office, a benchmark on capacity to consent generally:

The original wording of rule 10.15 was:

“Marketers must not knowingly collect from children under 12 personal data about those children for marketing purposes without first obtaining the verifiable consent of the child’s parent or guardian.”

The amended wording of rule 10.15 is:

“Marketers must comply with rule 10.5 when processing the personal data of children. Where marketers process the personal data of children under 13 in relation to an offer of online services on the basis of consent, they must obtain the verifiable consent of the child’s parent or guardian. Where marketers process the personal data of children under 13 for other marketing purposes (in other words, not in relation to an offer of online services) on the basis of consent, marketers must obtain the verifiable consent of the child’s parent or guardian, unless they can demonstrate compelling reasons for relying on the child’s consent and that they have had particular regard to the child’s privacy rights.”

CAP also consulted on the following changes to rule 8.28.5 (naming prizewinners) on the basis that under the GDPR, legitimate interests, as opposed to consent, would appear to be the lawful ground for publishing personal data about prizewinners:

The original wording of rule 8.28.5 was:

“Promoters must either publish or make available on request the name and county of major prizewinners and, if applicable, their winning entries except in the limited circumstances where promoters are subject to a legal requirement never to publish such information. Promoters must obtain consent to such publicity from all competition entrants at the time of entry. Prizewinners must not be compromised by the publication of excessive personal information.”

The amended wording of rule 8.28.5 is:

“Promoters must either publish or make available on request information that indicates that a valid award took place – ordinarily the surname and county of major prizewinners and, if applicable, their winning entries. Promoters must inform the prizewinner of their intention to publish the information and give the prizewinner the opportunity to object to their information being published or to reduce the amount of information published about the prizewinner. In such circumstances, the promoter must nevertheless still provide the information and winning entry to the ASA if challenged. The privacy of prizewinners must not be prejudiced by the publication of personal information and in limited circumstances (for example, in relation to National Savings) promoters may need to comply with a legal requirement not to publish such information.”

The changes take effect from 14 March 2019. To access CAP’s regulatory statement and the new rules, click here.