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If someone incites donations by including donors into a prize draw, is it still donation? Or is it contract? Gambling maybe?

Passport: Back to Our Roots is doing that: "Everyone who donates will be entered into a prize draw to win entry for themselves and a friend". Basically, if you want to attend a gig you can try winning "entry" by entering the draw — which you can do by either donating, or "for free by post".

The hitch is that the gigs "will happen when it’s safe for gigs to happen properly" — which may happen later than sooner, if at all.

Does that sound like a scheme for gig organisers to avoid having to refund / being held to account? Is it legal-proof?

If someone wins entry (having paid a "donation") but the organisers never deem it safe for the gig to happen, will the donor be entitled to a refund?

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  • "For free by post" makes it not gambling but a giveaway, similar to McDonalds Monopoly. – Trish Sep 7 '20 at 16:52
  • If you get something by donating then it's not a donation – user253751 Sep 7 '20 at 18:40
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Free draws are outside the remit of the Gambling Act 2005 per this guidance from the Gambling Commission (section 4 from page 5 onwards).

an arrangement is a lottery only if the participants are required to pay to enter. Therefore, free draws always have been and remain exempt from statutory control. Schedule 2 to the Act gives details of what is to be treated as amounting to ‘payment to enter’ for the purposes of distinguishing free draws from lotteries.

Given that there is an alternative route (sending a letter by post) to entering the prize draw, it can be regarded as a "free draw" and is not considered gambling.

To answer the other questions:

Does that sound like a scheme for gig organisers to avoid having to refund / being held to account? Is it legal proof?

No. It seems entirely pragmatic to be upfront that the gigs will not be going ahead until it's safe enough to withdraw social distancing guidelines. I don't know what you mean by "legal proof" here.

If someone wins entry (having paid a "donation") but the organisers never deem it safe for the gig to happen, will the donor be entitled to a refund?

It seems unlikely that there is a contract here. You are not buying a ticket, merely the right to enter a draw which may reward you with a ticket. I suppose you could argue that a contract has been formed if you have the right to dispose of your right to enter the draw, but it seems worthless to me and I can't imagine that any valuable consideration has exchanged hands as a result. Still, it would be a matter for a court to decide on the facts at the end of the day.

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  • The "alternative route (sending a letter by post) to entering the prize draw" is clearly discouraged by the organisers (otherwise they would allow it online — as entering by donation). It seems to be offered merely for the purpose of avoiding being regarded gambling. Isn't this a loophole? I wonder why there's no lots of online lotteries exploiting it as clearly people would often rather pay £5 online than bother sending a letter. "Legal proof" is meant to mean "resistant to legal challenges". – Greendrake Sep 7 '20 at 22:54
  • @Matthew there is definitely a contract - the right to enter a draw is good consideration for your consideration of giving the organiser your data. – Dale M Sep 8 '20 at 0:16
  • @DaleM I'm not convinced myself but I can see the appeal of the argument. – Matthew Sep 8 '20 at 9:30
  • @Greendrake Lotteries are highly regulated by the Act. You are not allowed to just set up a lottery without a licence; and those are cumbersome, expensive things to obtain and maintain. That is why nobody sets those up. – Matthew Sep 8 '20 at 9:31
  • @Matthew Sure, why set them up if you can just say "free entry by post" and run de-facto lottery, throwing all that post in the bin? – Greendrake Sep 8 '20 at 9:51

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