Overview

Contests, sweepstakes and other promotions have proliferated on social media platforms. Promotions have proven to be an excellent means of increasing social media mentions and traffic. They also come with a variety of risks, both legal and practical. Contests and sweepstakes are subject to a variety of federal and state laws and regulations, and those using social media as a platform must also be structured in a way that complies with each site's own policies and guidelines.

Failure to comply with site terms or guidelines can lead to the suspension or closing of a sponsor's social media page, or other disruptions in the orderly operation of a promotion. While the risk of enforcement may be relatively low (most social media sites do not aggressively enforce their promotions terms or guidelines), enforcement does occur (including as a result of consumer and competitor complaints), and even the temporary loss of a well-developed social media page can be a significant penalty. The applicable promotions guidelines of three frequently utilized social media platforms - Facebook, Twitter and Pinterest - are discussed here.

It must be stressed that compliance with the promotions guidelines of a social media website does not itself lead to compliance with other applicable laws and regulations. Facebook, Twitter and Pinterest each prominently mention in their respective promotion guidelines that all matters of legal compliance remain the sole responsibility of the promotion sponsor. For example, Facebook's guidelines place responsibility on the sponsor "for the lawful operation of that promotion, including the official rules, offer terms and eligibility requirements (e.g., age and residency restrictions), and compliance with regulations governing the promotion and all prizes offered in connection with the promotion (e.g., registration and obtaining necessary regulatory approvals)." All social media promotions - even those with minor prizes - should be scrutinized for legal compliance and be accompanied by written rules to provide clarity to entrants and maximum legal protection to promotion sponsors.

Facebook

Facebook includes specific guidelines for promotions (Facebook Guidelines) as part of its Pages Terms. The Facebook Guidelines set forth several legal requirements for promotions operated through, or promoted on, Facebook. The Facebook Guidelines require that all promotions include a complete release of Facebook by each entrant or participant, that all promotions acknowledge that they are not sponsored, endorsed or administered by Facebook or otherwise affiliated with Facebook, and that promotions contain disclosures that entry information is being provided to an identified third party and not to Facebook. These requirements all echo standard elements of official rules for well-designed promotions.

The Facebook Guidelines additionally provide structural limitations on promotions operated through Facebook. Most notably, Facebook promotions cannot be simply operated on a timeline or a profile page. According to the Facebook Guidelines, "Promotions on Facebook must be administered within Apps on Facebook.com, either on a Canvas Page or a Page App." In other words, separate software is required to administer a promotion. A variety of commercial software products are available, at widely varying price points, to meet this need. Moreover, the use of Facebook functionalities as part of an entry process or as condition of entry are limited. While a promotion may require an entrant to like a page, check into a place or connect to an app as a condition of entry, a promotion cannot use the "like" action alone as an entry mechanism. Use of other functionalities, such as sharing an image or liking a specific posting as a promotion entry or requirement is not permitted. As a final matter, the Facebook Guidelines prohibit the use of Facebook as a mechanism to contact the winner of a promotion. Therefore, a properly run Facebook promotion must include a means of collecting personal information from entrants to be able to contact the winner.

While enforcement of the Facebook Guidelines is not frequent, there are numerous documented examples of promotion sponsors losing their Facebook accounts due to violation of the promotions portion of the Facebook Guidelines. Facebook may also respond to consumer or competitor complaints about improperly operated promotions. Facebook promotions should, therefore, be structured to avoid the risks of noncompliance.

Twitter

Twitter also has developed a set of Guidelines for contests on Twitter (Twitter Guidelines). The Twitter Guidelines, despite their name, also apply to sweepstakes and other similar promotions. Like the Facebook Guidelines, the Twitter Guidelines remind sponsors that legal compliance is their own responsibility.

The Twitter Guidelines primarily offer practical tips for the operation of promotions. For example, promotions should bar the use of multiple accounts to obtain additional entries and avoid allowing multiple entries per day to prevent the posting of duplicate or near-duplicate updates or links by users. The Twitter Guidelines also suggest limitations on the use of hashtags, specifically that they should be relevant to their updates. The Twitter Guidelines additionally suggest that promotion sponsors require a reply back to the sponsor as part of any entrant's update, to ensure that the sponsor can readily locate all entries.

Compliance with the Twitter Guidelines can help promoters avoid negative reactions from Twitter users and assist them to properly manage promotion entries. Twitter promotions also provide additional challenges, such as how to provide official rules to entrants. It is recommended that entrants be directed to a website for complete rules and information about any promotion with a Twitter component.

Pinterest

Pinterest released its Brand Guidelines (Pinterest Guidelines) in November 2012 as part of its implementation of business accounts. Notably, promotions and marketing are prohibited  in individual user boards, pages and accounts. The Pinterest Guidelines, which are phrased as "do" and "don't" bullet points, prohibit promotions from requiring the pinning or re-pinning of contest rules. The Pinterest Guidelines also suggest that promotions should not: require the use of pins from a fixed or limited selection; use a pin, repin, board, like or follow as an entry or a voting mechanism; require the use of a minimum number of pins for promotion entry; or ask for comments. The Pinterest Guidelines additionally require that promotion sponsors not suggest any sponsorship, endorsement or affiliation of Pinterest with the promotion.

Pinterest encourages promotions to be "simple" and to avoid what Pinterest calls "spammy behavior," which frequently involves undertaking a variety of activities too frequently or too quickly. Similarly, the Pinterest Guidelines suggest rewarding "quality pinning" over "quantity."

The Pinterest Guidelines challenge a number of what had become standard procedures for Pinterest promotions. Although it remains unclear about whether most of the Pinterest Guidelines are advisory or mandatory, the presence of the Pinterest Guidelines require careful consideration of the structure of any Pinterest promotion.

Conclusion

The conduct of promotions on social media websites requires not only consideration of generally applicable federal and state laws regarding contests and sweepstakes (as well as related laws such as those governing advertising, privacy and data security), but also ensuring that the promotions are structured in a way that complies with the relevant requirements of the social media websites themselves. Careful attention to the structure of a promotion in advance of its launch can help to facilitate operation and completion of the promotion without legal or practical headaches.