United States: Social Media Competitions In The UK: Play Fair

Last Updated: May 26 2016
Article by Susan McLean and Mercedes Samavi

With 1.65 billion users on Facebook, 332 million users on Twitter and 400 million on Instagram, it is unsurprising that many companies are seeking to increase brand awareness and customer engagement by running competitions via social media. If you want to avoid attracting the scrutiny of UK regulatory authorities, however, you will want to ensure that your social media competition complies with the Committee of Advertising Practice Code (CAP Code).

The CAP Code acts as the rulebook for non-broadcast advertisements in the UK and requires that promotions (including those on social media) be legal, decent, honest and truthful. The Cap Code is enforced by the Advertising Standards Authority, the independent regulator responsible for advertising content in the UK. Given the particular challenges posed by social media, CAP has some useful guidance on sales promotions: prize draws in social media (Guidance).

If you are running a prize promotion in the UK, it's important to become familiar with the CAP Code and Guidance to ensure that your competition doesn't run into legal problems. Here's a quick overview of some of the key principles set out in the Guidance.

Key Principles Under the Guidance

If you're organising a promotion on social media, be sure that:

  • the promotion is run equitably, promptly and efficiently;
  • you deal fairly and honourably with participants;
  • you avoid causing unnecessary disappointment; and
  • any marketing communications connected with the promotion are not misleading.

In addition, the Guidance advises promoters to comply with the following practices:

  1. Include significant information in the initial advert.

Significant information includes the closing date, instructions on how to enter and any other restrictions on entry. Depending on the circumstances, other key information could include the start date, the number and nature of the gifts and/or prizes and the promoter's name and address.

There is an exemption for platforms that severely restrict the space of the initial ad, such as Twitter, which limits posts to 140 characters. However, you are expected to include as much information as is practicable.

  1. Include a link to the full T&Cs.

All participants must be able to access the full terms and conditions (T&Cs) that apply to the promotion before entry. These T&Cs must provide certain information, which participants must be able to access easily during the promotion period.

  1. Include all eligible entrants when selecting winners.

You must be able to demonstrate that a reliable method was used to collect all eligible entries (particularly where the method of entering requires using some feature of the applicable social media platform, such as re-tweeting a post on Twitter).

  1. Select prize draw winners at random.

This must be done in a verifiably unbiased way, for example, through the use of a computer process or in the presence of an independent person.

  1. (You would think that it goes without saying but...) Actually award the prize.

In addition to awarding any advertised prizes, adequate steps must be taken to ensure that the winner is notified. Calling a winner once, or only announcing the winner once via social media, is not sufficient.

If you are running a prize promotion you will need to keep in mind legal issues that may affect the competition in addition to the ones addressed by the CAP Code, such as:

  • Gambling Ensure that the promotion does not constitute an unlawful lottery under the Gambling Act 2005. Prize draws that are free to enter (or offer at least one free method of entry), generally avoid being so classified under the Act.
  • Data Protection Your collection and use of participants' personal data must comply with data protection law. Ensure that your data processing is compliant, and include a link to the applicable privacy policy in your T&Cs for the promotion.

Platform-Specific Rules

The social media platform that you are using to run your prize promotion likely has its own rules regarding prize promotions. Make sure that you check the platform's rules before you run your promotion (the rules are regularly updated). If you breach the platform's rules, then you risk having your account disabled.

Here are some of the rules governing prize promotions that you will find in Facebook's, Twitter's and Instagram's terms of use.

Facebook

  • Promotions must include an acknowledgement that the promotion is not affiliated with or endorsed by Facebook.
  • Personal timelines or friend connections can't be used to administer promotions. For example, you can't require participants to share posts on their timelines, or their friends' timelines, or tag their friends in posts in order to participate in the promotion.
  • Pages promoting the private sale of certain goods, such as alcohol, tobacco and adult products, must restrict access to those aged 18 and older.
  • Promotion of online gambling, casinos, lotteries and other related activities require prior authorisation from Facebook and are only permitted in certain countries.

Twitter

  • Discourage the creation of multiple Twitter accounts, for example, by including a rule stating that participants using multiple accounts will be ineligible to enter.
  • The Twitter rules prohibit the posting of duplicate, or near duplicate, Tweets, links or updates, so don't encourage participants to duplicate tweets. Play it safe by having your competition's rules state that multiple entries submitted in a single day will not be accepted.
  • To help ensure that all entries are counted, ask participants to include an @reply in their updates. This will help ensure that all tweeted entries show up in public searches.

Instagram

  • Don't inaccurately tag, or encourage users to inaccurately tag, any content. This includes requesting users tag themselves in photos when they are not in the photo.
  • Promotions must include an acknowledgement that the promotion is not affiliated with or endorsed by Instagram.

Conclusion

Running a social media competition can be an effective way to generate attention for your brand. By following the rules, you can help ensure that your brand is trending on Twitter, Facebook or other social media platform for all of the right reasons.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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