This article was originally published in the October 14,
2016 issue of The Lawyers Weekly.
More than ever before, legal and marketing teams must work
together to navigate a social media sphere that is littered with
legal landmines. There is no denying that social media touches
virtually every aspect of our lives and businesses. Consequently,
the issue for most marketers is not whether there is a choice to
engage in social media, but how best to engage with their closest
"friends." Often thought of as fast, easy and
cost-effective ways to engage consumers (after all, who doesn't
love the chance to win free stuff?!), social media contests can
pose significant challenges for the businesses that administer
Let us consider a few fundamental "truths" in the
context of a seemingly simple social contest with the following
"ask": "Show us how much you love your [brand] car
for a chance to win!"
Consumer-generated content is both one of the greatest assets
and one of the largest risks associated with running a social
contest. It takes only a quick online search to see how social
media — if not utilized properly — can result in a
major headache for your brand. Looking at our example above, on its
face our "ask" is seemingly straightforward. What could
go wrong? Well, a few things.
First, you need to keep in mind that engaging via social media
ultimately means ceding absolute control of your brand and sharing
it with consumers. Given that social media is a
"conversation" — with virtually no barrier to
participation — there is simply no way to predict how people
will engage or react. Different opinions, tastes, senses of humour
and tolerances mean that not everyone will participate in a manner
you deem appropriate, and invariably not everyone will be happy
with the content on your platform.
Second, you need to remember that the average consumer does not
understand the intricacies of intellectual property law. In fact,
the widespread general perception seems to be that if it's on
the Internet, it must be free to use. And so, it is critical to be
mindful of the increased likelihood of inappropriate, infringing
and/or illegal content being displayed and disseminated in
association with your contest and, more importantly, your brand!
All that is to say, although the "ask" is seemingly
straightforward, you may not always get what you ask for.
There is no Social Media Act in Canada, but do not fall
victim to the common fallacy that running a promotional contest on
social media is somehow less regulated legally. For instance, there
is an inherent purchase requirement (i.e., how can I tell you how
much I love my [brand] car if I do not own one?) in our example
above, which could be a violation of the Criminal Code.
The fact that the contest is run on social media does not
alleviate the need to consider the application of all
"traditional" laws. However, ensuring that your contest
complies with all such laws is no longer your only challenge. You
must also ensure your contest complies with each social media
platform's terms, guidelines and policies, which are frequently
revised and often with little or no notice.
You may also need to consider recent enforcement action and
guidance from regulators, like that of the Federal Trade Commission
in the U.S., which — although not legally binding in Canada
— noted that "[e]ntry into a contest to receive a
significant prize in exchange for endorsing a product through
social media constitutes a material connection that would not
reasonably be expected by viewers of the endorsement." (Hence
the trend toward including "#contest" to help make it
clear that social posts are tied to the chance to win in a
Appreciating there is no risk-free way for advertisers to
participate in this space, the following tips may help you mitigate
the inherent legal hazards associated with running a contest via
Carefully craft your "ask"
(try to anticipate the types of content you are most likely to get
based on the wording you choose).
Have clear and comprehensive contest
rules, which clearly explain the types of materials that are not
permitted. Consider giving carefully thought out examples of what
is acceptable and what is not. In addition, always retain the
discretion to remove and disqualify any content at any time.
Have robust moderation policies and
procedures. Engage a well-trained moderator who is sensitive to
social media marketing and legal issues.
Keep in mind that steps designed to minimize risk may also serve
to limit creativity. It ultimately becomes a question of how much
risk you're willing to tolerate. In the end, however, it
remains your responsibility to help ensure that content on your
channels is not inappropriate or offensive, and respects the
intellectual property rights of others.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The British Columbia Court of Appeal in Vancouver Community College v Vancouver Career College (Burnaby) Inc., 2017 BCCA 41 has reversed a lower court decision involving whether the use of keywords in online advertising constitutes passing off.
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