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• Governing law

  Name	Law or Code?
  Advertising Standards Authority for Ireland's 'Code of Standards for Advertising and Marketing Communications in Ireland' (“ASAI Code”)	Code
  Gaming and Lotteries Acts 1956 to 2013 (Gaming and Lotteries Acts) as amended by the Gaming and Lotteries (Amendment) Act 2019 (“Gaming and Lotteries Acts”)	Law
  Consumer Protection Act 2007 (“CPA”')	Law
  Unfair Terms in Consumer Contracts Regulations 1995 and 2000	Law
  The Commission for Communications Regulation (ComReg) Code of Practice on Premium Rate Services	Code
  European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011	Law
  Data Protection Acts 1988 and 2018 ('Data Protection Acts')	Law

  Last modified 1 Jun 2021

• Extra-territoriality

  In Ireland, there is not a government appointed regulator in respect of prize promotions. Any breaches of the relevant legislation may be prosecuted in Ireland, by the Director of Public Prosecutions.

  The ASAI Code only applies to prize promotions which are targeted at Irish consumers. If the promotion targets Irish consumers, but is promoted by non-Irish sources (i.e. by companies based outside of Ireland), or in direct marketing outside Ireland, either the following will apply:

  • If the promoter is based in a country which operates a cross-border complaint system that the ASAI considers suitable, the ASAI will defer to the relevant authority in the jurisdiction. The ASAI is a member of the European Advertising Standards Alliance and considers most EU countries to operate suitable systems.
  • If the promoter is not based in such a country, the ASAI may seek to take action, but any such action is likely to be limited and the ASAI is unlikely to prioritize such cases.

  The Gaming and Lotteries Acts apply to lotteries and certain prize draws operated in Ireland, including prize draws being promoted in Ireland, and offers of participation in a prize draw being made to Irish-based entrants. Lotteries which are promoted and conducted wholly outside of Ireland are excluded from the statutory prohibition on lotteries, and are not caught by the Gaming and Lotteries Acts.

  Last modified 1 Jun 2021

• Skills competitions

  Yes, but ensure:

  • the winner is determined on the basis of skill not chance, particularly if the entrant pays to enter; and
  • the skill element requires entrants to exercise skill or judgement or to display knowledge as part of the requirements which either prevent a significant proportion of potential entrants from taking part, or prevent a significant proportion of entrants from receiving a prize.

  If there is not a level of skill or knowledge required, the promotion could be considered to be based on chance, and therefore if payment is required to enter then this would be a lottery, requiring the relevant permit or licence. There is criminal liability for operating a lottery without the required permits or licences.

  Note: The element of skill in the promotion (i.e. the qualifying question) should be more than a mere 'colourable skill'. In practice this means the question should be one that requires a degree of knowledge/skill. The element of skill should be introduced at the point of entry, and as a minimum before the selection of the winner.

  Last modified 1 Jun 2021

• Prize draws

  A prize promotion with an element of chance in the selection of the winner is permissible, provided participants are not required to pay to enter or to receive the prize. If these conditions are not met then this may be considered a lottery, which requires the relevant permit or licence.

  'Payment' is not defined in the Gaming and Lotteries Acts. The prize draw must be 'for money or money’s worth'. It is possible that an Irish court could may consider payment to include: purchasing a product (subject to the exemption as noted below); where the only route of entry is a premium rate phone line; paying more than usual rates for delivery of the prize; paying to discover whether a prize has been won or to collect a prize; and/ or a requirement to provide a large quantity of data, especially if the promoter intended to sell such data to third parties.

  A prize promotion with a payment to enter or receive a prize may not include an element of chance unless there is a free route to entry. However, it should be noted that where a promotion is stated to be free to enter, but a substantial number of persons make a purchase then, generally speaking, the promotion may nonetheless be unlawful. It was held in Flynn v Denieffe [1993] 2 IR 28 that the fact that not all participants made a purchase did not prevent a promotion from being a lottery where a substantial number of the participants did make a purchase.

  There is a product promotion exemption, which allows the lawful promotion of lotteries, without having to obtain a lottery permit or licence, where the lottery is conducted in conjunction with the selling or marketing of a particular product and where:

  • the total value of the prizes is not more than €2,500; and
  • there is no charge for taking part in the lottery other than the purchase of the product concerned (if this is required) and there is no additional charge for the redemption of a prize.

  Since the coming into force of the Gaming and Lotteries (Amendment) Act 2019 (“the 2019 Act”), the condition that the holder of a lottery permit cannot personally profit from the lottery has been removed. Therefore, a non-charitable organisation can apply to a Garda Superintendent of its local district for a lottery permit for which the total value of prizes is limited to €5,000 and the price of each ticket shall not be more than €10. However, such a lottery permit only covers a specific locality and therefore is unsuitable for country-wide promotional schemes.

  Lottery licences can be obtained for lotteries with prize value limits of: (i) €360,000 if a single lottery is held during a year; and (ii) €30,000 if more than one lottery is held in any week. To obtain the licence, the applicant must show that of the total proceeds a maximum of 75% is for prizes, and a minimum of 25% is for charitable or philanthropic purposes. The licence holder is prohibited from deriving a personal profit from the lottery. A lottery licence may only be issued for a charitable or philanthropic purpose only. It cannot be granted for the personal benefit of a promoter. The 2019 Act introduces a number of new measures which are aimed at preventing non-charitable bodies using charities as a front to a licence application. For example, the District Court judge is now obliged to enquire into the purpose of the lottery and will refuse applications where it is apparent to the judge that the charity is not the main beneficiary under the licence application.

  Note: Certain other exemptions apply to the requirement to obtain a licence to operate a lottery. However, these are unlikely to be relevant to the running of marketing promotions.

  Last modified 1 Jun 2021

• Selection of winners

  Under the ASAI Code, which is only binding on members, provides that:

  • Should the prize promotion involve any form of draw, promoters should ensure that tokens, tickets or numbers are allocated on a fair and random basis. An independent observer should supervise the draw to ensure that individual entries enjoy equal chances.
  • Prize-winners should receive their prizes no more than six weeks after the promotion has ended, unless stated in advance.
  • Promoters should either publish, or make available on request, details of the name and county of residence of prize-winners. Promoters should bear in mind any risk if details given are sufficient to allow the address of a winner of a substantial prize to be identified.
  • If the selection of winning entries is open to subjective interpretation, an independent judge, or a panel including one member who is independent of the competition’s promoters and intermediaries, should be appointed. Those appointed to act as judges should be competent to judge the subject matter of the competition. The identity of judges should be made available to the ASAI on request.

  Last modified 1 Jun 2021

• Judges

  There are no specific requirements under Irish law. The ASAI Code (which is binding only on ASAI members) includes requirements in respect of judges and the judging for skills competitions. These requirements include that if the selection of winning entries is open to subjective interpretation, an independent judge, or a panel including one member who is independent of the competition’s promoters and intermediaries, should be appointed.

  Those appointed to act as judges should be competent to judge the subject matter of the competition. ASAI members are required to make available to the ASAI on request the identity of judges.

  Last modified 1 Jun 2021

• Prizes

  ASAI Code

  The ASAI Code includes the following requirements:

  • Entry conditions should set out a full and accurate description of the prizes.
  • Promoters should ensure that promotional products meet satisfactory standards of safety, durability and performance in use. Literature accompanying promotional items should contain any necessary safety warnings.
  • Phrases such as 'subject to availability' do not relieve promoters of the obligation to take all reasonable steps to avoid disappointing participants. Whilst not a restriction on an awarded prize, under the ASAI Code, a promoter should state in the promotion terms whether a cash alternative can be substituted for any prize. Also, if promoters are unable to meet demand for a promotional offer because of an unexpectedly high response, or some other unanticipated factor outside their control, products of a similar type and similar or greater quality and value, or a cash payment, should normally be substituted.

  Gaming and Lotteries Acts

  • For a lottery operated under permit, the total value of the prize(s) must not exceed €5,000.
  • For a lottery operated under licence the total value of the prize(s) on any occasion must not exceed €30,000 and if more than one lottery is held in any week, the value of the prizes for that week must not exceed €30,000 There is a cap of €360,000 for once-off annual prizes.

  Last modified 1 Jun 2021

• Registration requirements and fees

  Registration Requirements

  There is no requirement to register prize promotions. (Lotteries require either a permit, or licence, depending on the operation of the lottery and prize available.)

  Fees/Taxes payable

  Generally, winnings from prizes, betting, lotteries or sweepstakes are not taxable in Ireland where the winner is entering personally. If the winner participates in the course of trade, or their employment, then the winnings will likely be chargeable.

  (For a lottery operated under licence, the statutory fee is €150. A licence to operate a lottery is granted by the District Court, and the application to the District Court for the lottery licence, will incur further costs such as legal fees, and administrative costs.)

  Last modified 1 Jun 2021

• Other local requirements

  Promoters must also comply with generally applicable obligations in respect of consumer protection, and  it is prohibited to:

  • Operate, run or promote a competition or prize promotion without awarding the prizes described or reasonable equivalents; and
  • To make a representation or create an impression that a consumer has won or will win a prize or other equivalent benefit, if:
    • There is no prize or equivalent benefit; or
    • In claiming the prize, the consumer has to make a payment or incur a loss.

  As noted, the ASAI Code imposes a number of important requirements, which while not mandatory unless a member, compliance is considered best practice. The ASAI Code provides that:

  • Entry conditions should be clearly worded and should set out the closing date; any age, eligibility or geographical restrictions; any restrictions on the number of entries or prizes; any requirements for proof of purchase; any permissions required (e.g. from parent or employer); the criteria for judging entries; a full and accurate description of the prizes; any limit on the number of prizes that an individual consumer or household may claim or win, any limitations imposed on acceptance of the prizes and any duties or obligations on the part of the winners (e.g. post-event publicity); whether a cash alternative can be substituted for any prize; how and when winners will be notified of results; how and when results will be published; where appropriate, who owns the copyright of the entries; whether and how entries will be returned; whether the consumer may be liable to pay tax as a result of winning a prize.
  • Complex rules should be avoided and promoters should not need to supplement conditions of entry with additional rules. If further rules cannot be avoided participants should be informed how to obtain them and the rules should contain nothing that would have influenced a consumer against making a purchase or participating. Participants should always be able to retain or easily access entry instructions and rules.
  • The closing date should be clearly stated in each advertisement, on each entry form and on the outer surface of any relevant pack, wrapper or label. This date should not be changed unless circumstances outside the reasonable control of the promoters make it unavoidable.
  • When prize promotions are widely advertised, promoters should ensure that entry forms and any goods needed to establish proof of purchase are widely available.
  • The terms and conditions in which a promotion is presented should be clear, complete and easy for the consumer to understand. The following points should be clearly explained:
    • How to participate and conditions and costs;
    • Promoter's full name and business address in a form that can be retained or continually accessed by consumers;
    • Closing date for entry or the submission of claims for a prize should be prominently displayed;
    • Any proof or purchase requirements;
    • Any geographical or personal restrictions;
    • Any necessary permissions;
    • Any limits on the number of entries;
    • Any limit on the number of promotional products that an individual consumer or household may claim or win; and
    • Any other factor likely to influence consumers’ decisions or understanding about the promotion.

  If the promotion is linked to a charity there are further obligations in relation the advertisement of the promotion.

  Promoters must also comply with all GDPR and data protection obligations which may arise in the context of a prize promotion. Breach of GDPR has significant penalties - see Penalties for Non-Compliance section.

  Note: Where there are space limitations, the communications should include as much information as possible and direct the entrant to where all significant terms are stated.

  Last modified 1 Jun 2021

• Timing

  There is no specific timing required for competitions.

  (In circumstances where a licence or permit is required, sufficient time should be allowed for the application process, including making arrangements with a charity that will be associated with the lottery. There is a 60 day notice period required, either to the Gardaí or the District Court, depending on the type of permit or licence required. There is a 28 day period in which the Gardaí may consider the application, and must deliver their decision before the expiry of this period. In circumstances where an application to the District Court is required, additional time should be planned to allow for the hearing date to be set, and the application to be heard and granted.)

  Sufficient time should be allowed to address data protection issues, for example by ensuring all relevant privacy, cookies, and consent policies are in place.

  Last modified 1 Jun 2021

• Translations

  None required.

  Last modified 1 Jun 2021

• Penalties for non-compliance

  Under the CPA, if a trader is convicted of an offence, the court can require the trader to pay damages to a consumer who has suffered loss and can impose a fine or penalty on the trader. On summary conviction, the maximum fine for a first offence is €3,000.

  Data breaches under GDPR may result in fines of up to €20 million or 4% of annual worldwide turnover, whichever is higher. Fines imposed under the ePrivacy Regulations range from €5,000 on summary conviction to €250,000 for conviction on indictment.

  Where a prize promotion falls to be considered as a lottery, the Gaming and Lotteries Acts apply and amendments have introduced more severe penalties for breaches. A summary conviction may result in a fine of up to €5,000, and/or imprisonment for up to 6 months. Conviction on indictment may result in a fine of up to €50,000 and/or imprisonment for up to 2 years. On conviction, operators may also face revocation of any gaming or lottery licence or permit awarded. The Court may also order the destruction of any documents relating to the lottery.

  Last modified 1 Jun 2021

• Restrictiveness of regulations

  The Gaming and Lotteries Acts contain significant obligations for the operators of lotteries and certain prize promotions.

  The ASAI Code is only binding on members. Potential breaches are investigated, and may result in publication of any contraventions, and requested amendments. If a complaint is made to the ASAI, the ASAI Executive will consider whether to investigate, or whether to refer the complaint to another body. Should a complaint be investigated, the outcome of any investigation will be published and provided to the promoter. Promotions that are found to breach the ASAI Code must be withdrawn or amended, per the findings of the ASAI. Media outlets may also refuse to publish a marketing communication which fails to conform to Code requirements. In the findings, the promoter may also be asked to recompense any consumers who have been adversely affected by contravening promotion.

  GDPR imposes significant restrictions and obligations in relation to the data aspects of running prize promotions (e.g. use of submissions including personal data, winner publicity, etc.). The Data Protection Commission is a conservative regulator and compliance with all GDPR obligations is essential.

  Last modified 1 Jun 2021

• Regularity of sanctions

  ASAI

  The ASAI Code is only binding on members. Potential breaches are investigated, and may result in publication of any contraventions, and requested amendments. If a complaint is made to the ASAI, the ASAI Executive will consider whether to investigate, or whether to refer the complaint to another body. Should a complaint be investigated, the outcome of any investigation will be published and provided to the promoter.

  Promotions which are found to breach the ASAI Code must be withdrawn or amended, per the findings of the ASAI. Media outlets may also refuse to publish a marketing communication which fails to conform to Code requirements. In the findings, the promoter may also be asked to recompense any consumers who have been adversely affected by a contravening promotion.

  The ASAI may take action against a member who does not comply with an ASAI decision, including suspension of ASAI membership, or, in rare circumstances, fines.

  Gaming and Lotteries Acts

  In Ireland, there is not a government appointed regulator in respect of prize promotions. Any breaches of the relevant legislation may be prosecuted, in Ireland, by the Director of Public Prosecutions.

  In practice, breaches of the Gaming and Lotteries Acts are not frequently investigated, and therefore fines and prison sentences are rare. However the recent Act suggests there may be increasing regulation and scrutiny, in light of the amended requirements for operating a licence (where a licence is so required).

  Last modified 1 Jun 2021

• Key contacts
  

  Caoimhe Clarkin

  Partner DLA Piper [email protected] T +353 1 436 5483 View bio

  

  Clodagh Butler

  Associate DLA Piper [email protected] T +353 14 365 485 View bio