Facebook recently changed its terms and conditions to allow businesses to run promotions directly on their Facebook pages – by users ‘liking’, posting, commenting on posts, tagging themselves in content where they appear, or sending private messages to businesses.
The changes have been welcomed by businesses and should make it easier, quicker and cheaper to execute and administer many promotions. However, they raise new legal issues that you should consider when planning promotions and drafting terms and conditions for them.
Data protection compliance more difficult
Using ‘likes’, posts and comments as a tool for collecting and processing personal data may make it harder to comply with data protection rules. External apps and manual websites allow users to click to accept specific terms and conditions – this won’t be possible using the automatic ‘like’, post, tag or comment entry routes. Your promotion literature will need to include certain disclosures and seek entrants’ consent to use their data. This must happen at the point where they hand over their data – for example in the text of the posts advertising the promotion or via private message sent to each eligible entrant. If the promotion is available via outlets other than Facebook, ensure that disclosures are consistent across all media.
Risk of interventions by third parties
As Facebook users can mark competition entries as inappropriate, spam, abusive or otherwise breaching Facebook’s rules, third parties (or Facebook) might interfere with promotional activities and cause valid entries and material to be removed. You should put in place mechanisms to ensure that permanent records of all entries (via permanent and non‑permanent means) are captured, to allow tracking, monitoring and documenting of all material posted, where technically possible. This will be challenging for ‘likes’ and multiple comments on posts. For some promotions (eg promotions where entry and deciding winners are content‑reliant), the business may determine that app or external web‑based promotion tools are more appropriate.
Increased need to identify advertising sufficiently
The posting of content and comments by users is likely to blur the line between advertising and public comment. Avoid requiring users to post content that isn’t sufficiently identified as advertising (for example, where entries include product references or material about a product that could imply an endorsement or affiliation). If material could be perceived as advertising, use appropriate text (eg #ad or #spon) to mitigate the risk of breaching advertising regulations.
Prohibited activities remain
Some methods of collecting entries and interacting with users continue to be prohibited and should be avoided. Facebook’s terms and conditions still ban the use or sharing of material or posts on a user’s own timeline or sharing users’ friends’ timelines for promotional purposes. A promotion that encourages advertising‑related posts on private user pages would therefore breach the rules.
Need for enhanced terms and conditions
Marketing departments will no doubt find innovative ways to use the new rules for creative promotional campaigns. This could include encouraging users to post more content on company pages, or encouraging the posting of more sophisticated content. The terms and conditions for these promotions should be reviewed carefully and should cover at least:
- what types of content are prohibited (this should mirror what Facebook prohibits on the site generally);
- rules for the content of posts and comments (again, mirroring Facebook’s terms, with any extra requirements applicable to the promotion);
- rules for tagging content, including prohibitions on tagging other users without their consent and users tagging themselves in content where they don’t appear;
- minimum age requirements for users who are tagged (this will require a review of relevant promotion and contest laws in relevant countries – these might require a higher minimum age than Facebook’s minimum user age of 13);
- prohibitions on interfering with other users’ ‘likes’, posts, comments and tags that are valid entries, and a right to disqualify users who do this;
- provisions allowing you to interrupt or cancel the promotion if there is third party intervention (to the extent allowed under relevant local laws); and
- clear criteria for choosing winners, and confirmation that all entries will have equal standing – particularly for promotions that aren’t confined to Facebook, where there might be more risk of not being able to account for all entries and give them an equal chance of winning.