Prize promotions in Social Media

Social media, the El Dorado of media platforms…endless possibilities…wide and far reaching audiences….easy access for consumers…fun, interactive and innovative…a constantly changing environment…no wonder we are seeing a growing surge towards companies operating their prize promotions in such a lucrative space.

However, a constantly changing environment means that companies need to ensure that they are constantly on top of legal compliance requirements when operating their prize promotions. So what do you need to think about when operating a prize promotion?

Here's a brief checklist of the things companies should consider:

1. Ensure that the mechanics of your prize promotion are legal

No matter what platform you are using, when structuring your prize promotion, ensure that you are operating a legally compliant free prize draw or prize competition which does not fall foul of the Gambling Act 2005. Social media is not exempt from such legislation.

2. Ensure that you are acting in compliance with relevant advertising and marketing rules and regulations

When creating the content of your prize promotion and all supporting promotional material, ensure that it complies with relevant advertising and marketing regulations, including the Committee of Advertising Practice advertising codes of practice. All online marketing communications, including paid for advertising and all non-paid for advertising in on an advertiser's own websites and all online media space controlled by advertisers, such as social networking sites must comply with these codes.

There are also specific rules for social media content, including recognising marketing communications in limited media space such as Twitter by using the hashtags, #spon or #ad, genuine blogs, disclosures by bloggers who are being paid by companies for products that they are writing about. Unfortunately, these rules have not been collated in one central source.

Also be aware that sales promotions are prohibited for certain products.

3. Ensure that you have a full set of terms and conditions for the prize promotion

Consumers must be given access to a full set of terms and conditions. Even if the social media website is limited for space, you are still obliged to draw the entrant's attention to the terms and conditions of the prize promotion. For example, on Twitter, key terms and conditions should be specified in multiple linked tweets and a url to the full set of terms and conditions should be provided.

4. Read and understand the rules, regulations and policies of the social media platform

Review the specific terms, conditions and policies (if any) of the relevant platform in relation to advertising and the operation of prize promotions and check whether prize promotions are prohibited. For example, Facebook has specific rules on both, Pinterest has brief, but specific rules on both, but Twitter does not. However, Twitter does have various policies and guidance notes in relation to spamming (e.g. posting the same message multiple times), automation and following.

Many social media platforms also have specific terms, conditions and policies in relation to general advertising, marketing database practices, data collection and privacy issues.

5. Be aware of any conditions, restrictions or requirements

Social media platforms may place conditions, restrictions or requirements on the operation of prize promotions. Some examples:

• Facebook prohibits certain actions, some mentioned above.
• Pinterest also imposes some "don'ts", such as, companies should not make people Pin the contest rules or run a prize promotion where each Pin, like or follow represents an entry etc.

• Twitter and Pinterest prohibit spamming activity, such as requiring multiple pins or encouraging retweeting of the same tweet repeatedly.

6. Frequently check the rules, regulations and policies of the social media platform

Rules may be revised or replaced. For example, Facebook has recently changed it's stance on the operation of prize promotions on its platform yet again. Prize promotions may now be administered on Pages or within Apps on Facebook.com. This is a more relaxed position enabling businesses to operate prize promotions on its Page timelines. Facebook has also relaxed the position on use of Facebook functionality and removed certain restrictions. For example, companies can now collect entries by having users post on the Page or comment/like a Page post.

However, certain restrictions continue to apply, such as businesses cannot administer promotions on personal Timelines and tagging or encouraging people to tag themselves in content that they are not actually depicted in is prohibited.

7. Make disclosures and acknowledgements

Many social media platforms require certain disclosures and acknowledgements, so:

• make it clear that the social media platform provider is not sponsoring, endorsing or administering the promotion;
• include a complete release of the social media platform by each entrant or participant;
• make it clear that the participant is providing information to the promoter and not to the social media platform.

8. Consider whether the platform is appropriate for your target audience

Many social media platforms have a minimum age restriction for account holders. For example, individuals must be 13 and over to have a Facebook or Twitter account. Therefore, if you are targeting a younger audience, ensure the prize promotions are aimed at their parents as the entrant.

9. Consider whether you are collecting user generated content or using any third party materials?

It is important to remember that if a prize promotion involves user generated content, companies must ensure that the terms and conditions for the prize promotion include a provision which transfers all the relevant rights from the owner who generated the content to the advertiser.

Extra precautions need to be taken on certain social media platforms. For example, Pinterest prevents companies from requiring people to add Pins from a pre-selected selection of images. This means that entrants may use images belonging to third parties.

It is important that social media sites are adequately monitored and policed; they are often treated as extensions of an advertiser's own website and it is good practice to extend the terms and conditions, data privacy policies and acceptable use policies relating to an advertiser's own website to any social media sites on which an advertiser has a presence.

It is also useful to monitor social media sites to ensure that the advertiser's brand and intellectual property is not being misused by others, and that third parties are not attempting to pass themselves off as part of, or affiliated to you.

10. Are you collecting data?

If an entrant provides their electronic contact details i.e. email address to an advertiser when entering a promotion, or otherwise, they must explicitly provide their consent to receive marketing communications from the advertiser. Advertisers are not permitted to contact individuals without their prior consent. 

For further information contact Sonal Patel, Senior Associate, Advertising and Marketing at Field Fisher Waterhouse LLP.