Individual’s misinterpretation of contest wording leads to invitation to ex-wife

PIPEDA Case Summary #2007-373

[Principles 4.3 and 4.3.1 of Schedule 1]

A subscriber to a company’s electronic newsletter entered one of the company’s on-line contests to win a trip for four people to a popular destination.  The web site informed him that he could receive additional entries to the contest if he provided e-mail addresses of other individuals, which he did.  However, the contestant was dismayed when he discovered that the e-mails were sent to his referrals as though they were from him, rather than the company.  In particular, he was embarrassed that his ex-wife, who was one of his referrals, received an e‑mail in which he purportedly suggested that the two of them travel together if he won the contest.  He complained that his name was used in the e-mails without his consent.

The Assistant Privacy Commissioner found the contest rules and wording to be clear—e‑mail messages to contestants’ referrals would be personalized as though they came from the contestant.  As the prize was a trip for four, she thought it reasonable to expect the message to include a suggestion that the contestant and the e-mail recipient travel together.   The Assistant Commissioner therefore concluded that the complaint was not well-founded.

The following is an overview of the investigation and the Assistant Commissioner’s findings.

Summary of Investigation

As a subscriber to a company’s electronic newsletter, the complainant received an e-mail from the company inviting him to enter an on-line contest to win a trip for four to a popular destination.  After completing the information to enter the contest, the web site then invited him to provide 10 more e-mail addresses, for which he would receive 100 additional entries to the contest.  He did so.

According to the complainant, the company sent e-mails to these individuals, not from the company, but from him.  In supplying the addresses, he expected that the organization would send the same message to his referrals that it had sent to him.  Instead, the message advocated his opinion by using his name, saying, for instance, that he would like to tell them about the contest.  The complainant stated that he made no statement to the company with respect to whether the individuals would be interested in its contest.  He only supplied the address for the organization to do its own marketing, and not with his sponsorship.

In the complainant’s opinion, the most offensive part of the e-mail was the subject line that led the reader to believe he was suggesting the two of them travel together to the contest destination.  He emphasized that he did not expressly or implicitly grant the company permission to send out such a message under his name.  In particular, he was embarrassed when this personalized invitation was received by his ex-wife, whose e-mail address was one of the 10 he provided.

The organization noted that its contest contained a link to the contest rules and regulations, as well as one to the company’s privacy policy.  The rules and regulations for the contest indicated that it was only open to its newsletter subscribers.  With respect to subscribers referring the contest to others, the rules explained that the referred e-mail addresses would not be added to any direct marketing lists or used in any direct marketing programs. 

The Office learned that the contest included the declaration that “by entering this contest, I confirm that I am a Canadian resident and that I have read the contest rules and regulations.”  Once the contestant had completed the mandatory contest entry information, the individual was offered more chances to win by sending an e-mail about the contest to others.  The contestant was also thanked for spreading the information about the contest.

The organization stated that it does not keep copies of every e-mail sent out during its contests.  The company’s software merged the e-mail address supplied by the contestant, inserted that address and a brief message into the subject line, and followed it with a standard text.  The contestant could choose friends who might be interested in the contest and submit their e-mail addresses, on the understanding that an e-mail was going to be sent to each friend on the contestant’s behalf.  Consequently, when the complainant chose to provide the contact information for 10 individuals, his name appeared in the e-mails to his referrals.

The company’s position was that he gave his implied consent to the use of his name when he completed the on-line screen that indicated that e-mails would be sent by him.  The screen informed contestants that they could get more chances to win by sending an e-mail about the contest to friends, and that for every friend they sent a message to, the company would give them another 10 chances to win the contest.

The organization pointed out that the complainant was not obligated to provide any e-mail addresses.  He had already successfully entered the contest, and there was no further requirement on his part.  The company was of the view that he freely chose to enter e-mail addresses, apparently without obtaining the consent of the owners of those addresses.

According to the company, the whole idea of the contest was to try to win so that you could take three friends to a particular city.  The complainant chose to act upon a notice of the contest that was included in his copy of the electronic newsletter to which he subscribed; he also chose to complete a screen that was not mandatory (the 10 referrals).  The organization believed that it clearly explained the terms and conditions of the contest, and it provided a link to its privacy policy.  Since the complainant’s referrals were not subscribers, the information sent to them was not the same as that sent to him.

Findings

Issued February 14, 2007

Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.  Principle 4.3.1 stipulates that consent is required for the collection of personal information and the subsequent use or disclosure of this information.  It notes that, typically, an organization will seek consent for the use or disclosure of the information at the time of collection.

In making her determinations, the Assistant Privacy Commissioner deliberated as follows:

• The complainant chose to enter the company’s contest to try to win a trip for four to a popular destination. 
• The company offered him more chances to win by sending an e-mail about the contest to friends.  Clearly, the complainant was under no obligation to provide any e-mail addresses—he volunteered to do so.
• The contest wording regarding the referrals indicated that he would be sending the messages, not the company.  Accordingly, the Assistant Commissioner thought it obvious that the messages would be personalized by the use of the complainant’s name.
• While the contest was being promoted, the organization provided contestants with its contest rules and regulations, and gave a web link to its privacy policy.
• As for the complainant’s belief that the company was going to send only marketing information to his referrals, rather than contest information, the contest rules clearly stated otherwise.  Furthermore, by entering the contest, he confirmed that he had read the rules.
• In light of the fact that the prize was a trip for four people, the Assistant Commissioner believed it was reasonable to expect that the subject line of the e-mails would refer to people going together to the locale. 
• She pointed out that the onus was on the complainant to decide who would receive the e-mails, in other words, who might be appropriate companions should he win the contest.
• The Assistant Commissioner was satisfied that the complainant gave implied consent to the organization’s use of his personal information when he entered the contest and provided it with 10 e-mail addresses. 
• The company had therefore met its requirements under the Act.

The Assistant Commissioner concluded that his complaint was not well-founded.