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.” Enter promotional contests. 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 them.
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 contest.)
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 social media:
- 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.