In addition to structuring sweepstakes and contests so as to comply with federal and state law, companies must take care that their promotions also comply with the terms and conditions of social media networking sites, particularly site rules regulating consumer sweepstakes and contests.
LinkedIn prohibits its users from uploading, posting, emailing, or making available any unsolicited or unauthorized advertising or promotional materials.12
Google+ prohibits online promotions directly from a Google+ page, but allows users to “display a link on your Google+ Page to a separate site where your Promotion is hosted so long as you (and not Google) are solely responsible for your Promotion and for compliance with all applicable federal, state and local laws, rules and regulations in the jurisdiction(s) where your Promotion is offered or promoted.”13
In contrast to the prohibitive policies of Google+ and LinkedIn, Twitter specifically authorizes users to conduct promotions on its platform. In fact, Twitter’s Guidelines for Contests on Twitter (which, despite its name, applies to both contests and sweepstakes) appears to encourage promotions provided that the Twitter user experience is not compromised. For example, Twitter requires contest promoters to disqualify any user who enters a contest from multiple accounts; encourages entrants to include an “@reply to you” in their update so that all the entries are seen; and discourages multiple entries from the same participant on the same day, presumably to discourage posting of the same Tweet repeatedly (à la “whoever re-Tweets the most wins” variety).14
On November 4, 2009, Facebook issued new Promotions Guidelines that contain specific rules for administering sweepstakes and contests on its website. These guidelines were again most recently revised on May 11, 2011. Under this revision of the guidelines, administering a promotion on Facebook means “the operation of any element of the promotion, such as collecting entries, conducting a drawing, judging entries, or notifying winners.”15
As of the date of publication, promotions are subject to the following guidelines:
- Must use the Facebook platform app—Facebook requires that all promotions on its site be administered via a third-party Facebook platform application, within Apps on Facebook.com, either on a canvas page (that is, a blank page within Facebook on which to load and run an app) or an app on a page tab. If you do not want to use an app to run your promotion, you should consider running it on your own website or blog, and simply have contest participants like your Facebook page as a part of that contest.
- Use the allowed functions—Facebook now allows only three site functions to be used as a condition of contest registration or entry:
- Liking a page
- Checking into a place
- Connecting to your app
- May not be used for a promotion’s registration or voting methods—Facebook features and functionalities cannot be used as a promotion’s registration or entry mechanism, nor as a promotion’s voting mechanism. For example, the act of liking a page or checking in to a place cannot automatically register or enter a promotion participant. So, no more “Just like our page, and you’ll be automatically entered to win!” If you want to do a promotion for people who liked your page, you need the app you use to offer a way to enter, such as through providing an email address. Accordingly, although companies can condition competition entry on liking a page, the like functionality cannot be used as the actual method of entry itself. The action of becoming a fan can never alone equal an automatic entry into the contest or sweepstakes. Rather, after having liked your page, entrants must be directed toward a separate registration process administered through a third-party app on a separate canvas page (now a link, formerly a tab).
- Facebook features may not be used to notify winners—Companies are not allowed to use any Facebook features to notify winners, such as through Facebook messages, chats, or posts. Companies should establish alternate means of communication with all participants (such as email) to notify winners.
- Must make proper disclosures—The guidelines also require that the official rules for a promotion administered on Facebook include specific disclosures, including an acknowledgment that the promotion is not associated with or sponsored, endorsed or administered by Facebook, a provision releasing the social networking site from liability from each participant; and notice that information submitted by participants is being disclosed to the contest promoter, and not Facebook.
- Do not use Facebook’s intellectual property—Companies are not permitted to use Facebook’s name, logos, and so on in their promotions, other than to fulfill the required nonaffiliation disclosure.
Figure 1.1 SAS's "Up For Grabs" Promotion.
Figure 1.2 Contiki Vacations' "Get on the Bus" Promotion.
Many companies appear to be ignoring Facebook’s Promotions Guidelines, but it is only a matter of time before more and more Facebook accounts of both small businesses and major brands are suspended (or disabled) due to noncompliance.
This chapter provides only a preliminary overview of the potential legal pitfalls facing companies which operate promotions through social media channels. Further, there are a variety of other statutes covering special types of promotions which were not addressed in this chapter, including: in-pack/on-pack promotions; bottle cap sweeps; preselected winners; everybody wins; retail promotions; promotions aimed at children; Internet and mobile promotions; direct mail promotions; and telemarketing promotions. Social media campaigns conducted in conjunction with these promotional techniques should be exercised with an extra degree of caution.
As the popularity of social media sweepstakes and contests continues to grow, the laws regulating this space will surely follow. It will probably be a few more years before we have a comprehensive statement of the law governing these issues—but even then, the rapid pace of technological advance makes obtaining a definitive set of laws almost impossible. Careful promotional planning, structuring, and oversight are the best means of running successful and legally compliant social media promotions. To that end, companies should heed best practices for social media promotions as summarized in Figure 1.3.
Figure 1.3 (Click to enlarge) Social Media Legal Tips for Contests and Sweepstakes.