CONSUMER COMPETITIONS – ORDER OF RECEIVING TEXT MESSAGES – is an element of randomness which does not give grounds for qualifying a marketing activity as a competition.

The order in which text messages are sent by the competition participants is not a “first come, first served” mechanism


Judgment of the Supreme Administrative Court dated 15 November 2017 upholds the position of the Provincial Administrative Court in Warsaw:

... Already at the time of sending an SMS with a reply to the operator the competition participant has no impact on how the system assigns his or her entry, the participants have no impact either on the time when their reply to the question reaches the organizer or on the time the organizer sends questions as part of a series of questions. Consequently, game results and prizes are not dependent only on the participants efficiency and knowledge, but also on other factors, such as the operational condition of the game organizers registering devices or the efficiencyof the operators technical network which the participant uses to send an SMS. There is no guarantee of the SMS reaching the recipient or the time and order of the SMS reaching the recipient, which determines the random nature of such game.

Putting in place an additional element of knowledge in the competition in the form of answers to a series of three general knowledge questions does not deprive the competition of the elements of a game of chance defined by law (where the result depends on chance). To obtain a consolation prize, you did not need to answer any question; all you had to do was to register on a given day and be enrolled on a list of one hundred fastest individuals (§ VI 4.2 of the Regulations). It is therefore inappropriate of the Appellant to claim that failure to demonstrate knowledge in the competition made it impossible to obtain any prize. The element of randomness of the game is not affected by the fact that the participant could improve the result and repeatedly join individual stages of the competition, or by the fact that the competition is not based on the who is the fastestprinciple, but rather on the in the time closest to [...] secondsprinciple. In the Courts view, although in the two cases the time factor played an important role, obtaining the best result was not dependent only on the participant's knowledge and skills.....

Consequently, an SMS IS ONLY A TECHNICAL TOOL for delivering a COMPETITIVE TASK rather than a priority determining factor. Competition organizers must follow this rule if they do not want to face charges under the Gambling Act.

Kancelaria Radcy Prawnego Dorota Imielska-Zadrożny
02-691 Warszawa 
ul. Obrzeżna 1c lok. 116
NIP 527-131-94-20
Tel.: +48 (22) 401 28 05

© Kancelaria Radcy Prawnego Dorota Imielska-Zadrożny :: Warszawa 2024

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