Pitfalls and Complications in Running a New-Media Promotion

Administering a sweepstakes or contest online can be a great way to attract traffic and engage with consumers. Not surprisingly, many companies routinely utilize sweepstakes and contests (which are referenced collectively in this article as “promotions”) as part of their overall online marketing push. Administering promotions, however, can get complicated when operating them on third-party platforms, such as social media sites. Many of you are no doubt familiar with the basic laws applicable to running an online promotion. This article does not discuss those laws, but rather describes some of the more detailed or latent issues and complications that need to be considered and addressed when running a promotion on certain social-media platforms.

(1) Know Your Limitations When Operating on Social Media, Part I - Contractual Restrictions

Each of the major social-media platforms comes with its own distinct considerations when using the platform to run a promotion. These services often use their respective terms of service and related agreements to restrict whether and how a business can use the service to administer a promotion.

Most often, these restrictions limit the type of behavior that the sponsor may engage in or ask entrants to engage in on the service and, as a result, they affect how the promotion may be permissibly run. For example, Facebook prohibits requiring a user to post to his or her own timeline as part of the promotion. It also prohibits inaccurately tagging users in a photo or encouraging users to inaccurately tag themselves or others (e.g., requiring a user, as a method of entry into your promotion, to tag him- or herself in a photo of one of your products). Similarly, Instagram prohibits inaccurate tagging, but (seemingly because of inherent differences in the service) does not prohibit requiring users to post photos to their own feeds as Facebook does. Twitter requires that promotion administrators structure the promotion so as to discourage participants from creating multiple accounts and from retweeting the same (or substantially identical) tweets. YouTube (which permits only contests, and not sweepstakes) prohibits using its view count or “like” features to administer a contest (e.g., as a public voting mechanism). YouTube also prohibits the use of data collected as part of the contest for purposes other than contest administration (even if the user has opted into re-use of the data for marketing purposes). When determining how to structure the entry mechanism of a promotion, a sponsor needs to be aware of these limitations.

Sometimes, however, these contractual restrictions affect to whom a promotion may be offered or whether a promotion can be administered on the social-media platform at all. For example, Tumblr prohibits use of its service to administer a promotion where the prize exceeds $1000. YouTube requires that any promotion utilizing its service be open only to those who are the age of majority in their place of residence (which is above 18 in Alabama, Mississippi, Nebraska, and Puerto Rico). Foursquare requires that you get its prior written permission before using its service for any “commercial activities,” which include administration of a sweepstakes or contest. If you want to use any such service for a promotion, you must ensure that these requirements are satisfied.

That is not to say that any of these contractual restrictions is insurmountable. Most can be addressed through careful planning by the promotion’s sponsor (or administrator), but they need be considered early in the design stage.

(2) Know Your Limitations When Operating on Social Media, Part II - Administrative Complications

In addition to contractual restrictions imposed by the various social-media platforms, each comes with its own functional idiosyncrasies that can affect the administration of a promotion, including tracking entries and communicating with potential winners.

As many readers are likely aware, Facebook significantly relaxed its promotion rules in August 2013. Following that change, administrators may now offer promotions on their Facebook Page without using a third-party entry application, joining other major social-media platforms that allow for the administration of promotions using the native functionality of the platform. This native format, however, requires careful planning and administration.

One of the challenges involves tracking entries. Unlike promotions run on a micro-site or through a Facebook application, many native social-media promotions require manual tallying of entries, which brings with it an increased risk of human error and needs to be done with care. Requiring users to include a unique hashtag or an @reply to your brand’s account can ease tracking difficulties when operating on services that use those features. However, not all services offer a searchable hashtag or @reply system (e.g., Foursquare) and not every possible entry method results in a single, central list of entrants (through hashtag search or otherwise). In such cases, it is important to think through the entry process and have a clear plan for collection before launch. If you will be running the promotion on Foursquare (or another platform on which searchable hashtags are not available), one option is to require the user to simultaneously post his or her entry check-in to both Foursquare and Twitter. This allows you to use Twitter’s searchable hashtag feature to track entries originating through Foursquare.

Another challenge with promotions on certain platforms is communicating with potential winners. When running a promotion directly through a social-media platform (as opposed to on a micro-site or Facebook application), it is likely that you will have very limited information about the entrant and will need to rely on the platform’s internal communications mechanisms to initially contact potential winners. However, not all platforms have internal communications methods and not all methods have the free usability of external tools like email. For example, Twitter’s direct-message feature requires that the recipient be a follower of your account in order for you to be able to send him or her a message. On Instagram, if you send a direct post to a user who is not following your company’s handle, the recipient has to actively accept your post. Foursquare has no internal messaging feature (though confirmed friends of a user may have access to his or her email address). Complicating matters further, a Foursquare user can only comment on another user’s check-in post or tag that user in his or her own check-in if the two are friends on the service.

When running a promotion on such a service, the sponsor needs to consider - and to clearly spell out in the official rules - how it will attempt to communicate with potential winners where it lacks external contact information and a reliable direct-messaging feature is not available. For a sweepstakes held on Twitter, if the sponsor is not able to send the potential winner a direct-message, it may choose to tweet an @reply to the potential winner, providing him or her with way to contact the sponsor and asking for a reply within a set period of time. On Foursquare, the inability to send direct messages and potential inability to comment on an entrant’s check-in or to tag the entrant in your own check-in counsel for using the combined Foursquare/Twitter dual-post method discussed above.

Again here, none of these complications should dissuade potential sponsors; all can be addressed through advanced planning. That said, even with a well-laid plan, it is possible that a platform’s features change or do not work as planned during your promotion. This is where your official rules come into play. In the official rules, you want to plan for the administrative complications discussed above, as well as potential feature changes and functionality problems, by disclaiming responsibility for events that might inhibit a user’s ability to participate in the promotion or your ability to contact potential winners. These disclaimers should account for, among other things, inability of the sponsor to see purported entry posts due to a user’s privacy settings, removal of purported entry posts prior to their being tallied as entries into the promotion (either by the user or by the social-media service), difficulties in initially contacting potential winners, and an entrant’s failure to accept, notice, or timely respond to communications from sponsor.

(3) Tread Carefully with Public Voting

One popular method of driving visitor participation in an online contest is to open the entries to a public vote. While this can be engaging and a useful part of the overall judging process, public voting should be employed cautiously due to its potential for misuse. In recent years, some contests and other promotions that have relied on a purely public-vote format have had to choose between shutting down prematurely or bearing the outcome. Notable examples include:

• a contest in which the prize was a chance to meet musician Taylor Swift. The contest was promptly cancelled after 4Chan members used automated voting to back a 39-year-old candidate named Charles;
• a promotion to name a new flavor of Mountain Dew. The contest was cancelled after voters filled the leaderboard with an impressive collection of sexually explicit and otherwise offensive proposals; and
• a contest in which the sponsor offered a concert by rapper Pitbull at whichever U.S. Walmart received the most Facebook “likes.” After a trolling campaign rallied support for the nation’s most remote Walmart location, Pitbull (taking things in admirable stride) appeared at the Walmart in Kodiak, Alaska.

To avoid a similar fate, sponsors that want to use public voting should take two important steps. First, minimize the potential impact of the voting process. This can be accomplished by making the public vote one of several judging criteria and giving it a relatively small weight. It can also be accomplished by breaking the judging process up into two stages. In the first stage, a public vote can help cull the field down to a select group of entries and, in the second stage, sponsor-selected judges can choose a winner from among that group based on set judging criteria. Second, and just as important, the official rules of any contest that utilizes voting should clearly prohibit use of automated voting mechanisms and the rules of any promotion - whether or not public voting is involved - should give the sponsor the right to modify, suspend, or terminate the promotion in the event that external forces (e.g., bands of mischievous internet trolls) impair the administration, security, integrity, or fairness of the promotion.

(4) Design Accordingly and Protect Yourself

In short, running an online promotion that utilizes popular social-media platforms can involve particular compliance obligations and administrative issues (beyond those applicable to all promotions). Potential sponsors need to consider these complications carefully in planning a promotion. Remember that just because something is possible technologically does not mean that it is permissible contractually. Similarly, just because an idea is simply stated, does not mean that it can be simply executed using your desired social-media platform (e.g., notifying entrants that they may have won). Sponsors should be aware of these issues when designing a promotion and should implement a set of official rules that have been tailored to the particular promotion in order to inform participants of how the promotion works and to help guard the sponsor against potential liability.