Last month, it became cheaper and simpler to market on Facebook. The platform empowered businesses to launch sweepstakes and contests easily and directly on Facebook’s pages rather than through a third party application. (For a complete discussion of the guidelines’ changes and updates, click here.) Certainly, these new guidelines are a boon to market researchers who can aggregate “likes” as a public focus group are a boon to market researchers who can aggregate “likes” as a public focus group. Still, before brands all jump to give away a prize for liking a post in the hopes of increasing traffic, they should ask themselves five questions and proceed to use Facebook giveaways with caution.
- Where’s the data? Facebook has always been about data. Facebook accrues data on its users, and businesses use Facebook to accrue data bout their customers. If a business runs its sweepstakes or contest directly on the social media platform and not through a third party application, it forgoes the opportunity to amass data on its customers, including email addresses. Indeed, Facebook, itself, reminded its business customers that they may wish to continue to use an application to run their promotions as applications provide a more customized experience to the consumer and more options for collecting data.
- What’s still off-limits? Personal Timelines are, for the time being, still off-limits for promotion administration. Interestingly, Facebook leaves the door open for possible promotion on Personal Timelines, saying it “may explore” this option in the future. As it works out technical issues with privacy settings, Facebook would undoubtedly like to see all timelines interacting with one another. For now, however, businesses cannot tag or encourage people to tag themselves inaccurately, meaning that sharing a post about the sweepstakes on a Personal Timeline cannot be a method of entry. Similarly, a sponsor cannot offer additional sweepstakes entries for sharing a post on a friend’s Timeline. In some cases, Facebook has not provided clear guidance. For example, while not explicitly banning liking pages as a method of entry, it seems from the new guidelines that you should stick with requiring liking on content on your business page rather than the page itself. Be sure you understand the do’s and don’ts. Facebook is still splitting hairs with many of its rules in an effort to protect itself from legal liability.
- Do as I say or as I do? Facebook’s promotion guidelines “cheat sheet” shows an example of a newly acceptable promotion. Jasper’s Market asks customers to help name its newest kiwi cocktail by posting suggestions in exchange for a chance to win $500 in free food and drink. The fact is this promotion would be problematic under Facebook’s own guidelines. Facebook requires sponsors to ensure their promotions’ legality and to disclaim connections to the platform. Yet, in the Jasper’s Market example it is not clear whether the brand will choose winners at random or based on judgable criteria. There are no rules of any kind. Facebook’s own example, therefore, raises the issue of how the platform will enforce its guidelines At some point, Facebook is going to have to come to terms with the practical limitations of policing its own website. If it starts to do so by arbitrarily closing down some brands’ pages and not others, brands will grow frustrated with the platform. As a consequence of this dilemma, brands should not become too comfortable with these new guidelines. If they are to have any teeth, Facebook will need to revisit the guidelines once it determines if it can enforce them properly.
- Does public voting really help you as a brand? Under the new guidelines, fans can vote by simply liking a post on your business timeline. Many brands mistakenly think that because a public vote draws in more participants that it is the best strategy for fan engagement. The danger here is that companies will put too much confidence in the public vote and undermine the legal validity of their skill contests. Public voting requires strategic planning to meet the requirements of the fifty states’ lottery and gambling laws. In addition, if the public vote has too much weight in the end result, it can encourage cheating and vote farming. (See my post on how to put an end-run on cheaters in contests here.) So ask yourself whether you really want the legal validity of your promotion and the end result to be in the hands of the public.
- Who’s watching you? As businesses scramble to take advantage of the platform’s new opportunities, we will likely see an increasing amount of promotional activity on Facebook. As before, however, the overall legality of the promotion is the responsibility of the Sponsor, and the rules must continue to make clear that Facebook is in no way connected to the promotion. In addition to meeting Facebook’s requirements, marketers must continue to keep track of 50 states’ laws on sweepstakes, contests, and gambling as well as FTC regulations. Over the past few years, prize promotions have ranked consistently in the FTC’s top ten list of consumer complaint areas, and the FTC has been quick to investigate companies that it believes are duping consumers. With Facebook easing its rules for entry, it is likely that the FTC will start to pay more attention to Facebook giveaways. Brands should ensure that they have processes to vet all Facebook giveaways’ legality. The speed with which these promotions can launch has just accelerated, and so, too, has the legal risk associated with a promotion that is an illegal lottery or is deceptive in nature.
Concluding Thoughts: Fans love prize promotions, but they may not like being inundated with offers. Under these new promotion guidelines, Facebook has opened the floodgates. We will likely see an explosion of sweepstakes and contests on Facebook in short time on business pages. How long will it take for customers to feel a deep sense of ennui? Smart brands will use simple promotions on Facebook strategically to engage their fans in a larger marketing effort. Part of the strategy should include a cost benefit analysis of the legal and business risks associated with Facebook’s revised promotions guidelines.
For more about preventing legal mistakes in social media sweepstakes and contests, click. For more about preventing legal mistakes in social media sweepstakes and contests, click here.
© Kyle-Beth Hilfer, P.C. 2013
DISCLOSURE: This article does not constitute legal advice. If you have legal questions about running a sweepstakes or contest on Facebook, please contact this post’s author or another attorney.
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