As of August 27, Facebook has changed some of its rules for businesses running promotions on the social media platform. Designed to make it easier to administer promotions on Facebook, the new rules remove several logistical requirements that previously deterred small businesses from using Facebook for their promotions. See announcement here.
Key changes include:
However, sponsors can't encourage users to inaccurately tag content (e.g., tag themselves in content they are not actually depicted in).
Also, other existing rules still apply, such as the requirement that entrants release Facebook from liability and that sponsors make clear that they (and not Facebook) are administering the promotion and collecting any content/information from users. See the Facebook Pages Terms, Advertising Guidelines and other pages linked therein for more information.
What this means for you:
Brand owners and businesses of all sizes now have another option for running contests and sweepstakes on Facebook. Many marketers have applauded the changes, including the ability to run a promotion without hiring a third-party app developer. Others note possible difficulties in administering promotions on a page, rather than through an app that offers more control over random drawings and enables sponsors to collect entrants' e-mail addresses.
Several legal issues arise from these changes. Sponsors need to ensure that random drawings are truly "random" to avoid misrepresenting their promotions. Sponsors remain responsible for the lawful operation of their promotions, including disclosure of the material terms and conditions, and should consider how to make these disclosures (including the mandatory release of Facebook) on their pages, along with setting forth the official rules that govern the promotion, in a clear and effective manner. And although "Like gating" is commonly used, it remains to be seen whether any jurisdictions will find that requiring people to engage with the business on Facebook (via liking, sharing, or commenting on a page post) rises to the level of consideration. If so, an alternative method of entry may be needed to avoid the combination of "prize, chance and consideration," the three indicia of an illegal lottery.
Day Pitney lawyers regularly advise clients on legal issues relating to branding, promotions and social media. Before launching your first Facebook contest or sweepstakes promotion, please feel free to contact us.
Day Pitney Alert
On November 5, Philip Pacelli will be speaking at Intellectual Property: Tips for General Practitioners, a CLE program being presented by the Young Lawyers Section of the Connecticut Bar Association and held at the CBA Law Center in New Britain, CT.
On October 2, partner Cathy O'Connor will serve as a moderator at "Advertising and Marketing Pitfalls: Staying on the Right Side of the Law," a program presented by the Entertainment, Media & IP Law Committee of the Fairfield County Bar Association and held in Stamford, CT.
On September 27 and 28, Day Pitney will be hosting "Canadian Update on Trademark Law for U.S. Practitioners," a roundtable program presented by the International Trademark Association (INTA).
Mark Salah Morgan authored an article, "Strengthening Egypt's IP Laws Could Help Fight Brain Drain," which was published in Law360.
Day Pitney Press Release
On October 26, Day Pitney LLP hosted a program on entrepreneurship and innovation with the Consulate General of Israel to New England and the New England Israel Business Council at the firm's Boston office.
Day Pitney Press Release
Carrie Webb Olson, Elizabeth A. Alquist and Mitchell R. Harris have been selected as winners of the Lexology Client Choice Awards USA & Canada 2017.
Richard Brown was quoted in an article, "Winery Sues NJ Turnpike Authority to Defend Right to Use Highway Sign in Logo," in The New Jersey Law Journal.