Before you publicize your next big social media giveaway, consider the risks if the entrant who wins turns out to be a liar, drug dealer, porn surfer, or criminal. The wrong prizewinner can reflect poorly on the brand and create a public relations disaster. Vetting your potential prizewinners with a well-researched background check is a vital due diligence step to protect the brand’s reputation.
As the attorney drafting promotions’ rules, I always discuss these possibilities with clients offering high-end prizes that generate publicity. I take care to draft the rules to allow for lawful background checks, to preserve the promotion’s timeline, while still preserving entrants’ data privacy.
In addition, I often collaborate with a private investigator on these issues. I posed some questions about the investigative side of sweepstakes and social media contests to Shannon Tulloss, a private investigator whose company specializes in vetting potential sweepstakes and contest winners.
Q. Historically, when did brands start incorporating background investigations of potential winners into their prize promotion administration?
A. I started receiving calls about seven years ago for this specific service. This is roughly when social media began to be an integral part of everyone’s life.
Q. Why do you think brands started doing investigative checks on potential winners?
A. Consider the bad publicity or worse if a brand offers a full expense paid cruise to someone with a drug habit or sex offender. Would a brand feel great about giving a $2,000 award to someone who quietly supports causes that don’t align with the brand’s public image? Vetting potential finalists prior to them becoming part of the public discussion is the best step toward brand image preservation and avoiding potential bad press or litigation.
Q. Can you give an example of a vetting that turned up a problem?
A. It is difficult to choose just one. We worked on a cover model contest for an international brand. The brand’s first choice was a young woman who looked great at first glance, but we discovered that she had been arrested in several states. She had no current driver’s license. She was unable to locate her passport. I found evidence of two social security numbers. Because of her criminal history and her inability to locate her passport, this woman would never have been able to travel internationally and meet the brand’s schedule. Fortunately, the other finalist was clean as a whistle.
Just yesterday, we discovered that a man had been nominated by his peers for an award who has an extensive ongoing secret interest in disturbing porn sites, enabled with hidden profiles.
Another finalist for a prize had admitted in a hidden profile that he had relapsed into heroin use the same day they were about to be awarded $5000 cash. What if the brand had awarded the prize and the individual had chosen to use it for heroin that led to his death?
Q. Can you give an example of a promotion that failed to vet resulting in a public relations problem for the brand?
A. The American Idol contestant who lied to the show about his history, name and criminal past is a perfect example. American Idol vets as the show airs, so ultimately, their decisions to disqualify are often in front of their entire audience. Often, the public does not like the decisions that they make. In this instance, it was no wonder that it took even American Idol several weeks to discover the contestant’s lies. Liars are usually really good at lying, and even the best investigators take time to uncover the truth. For other examples, HGTV Cancels Show and Benham Brothers Faithfully Move Forward and ‘Contender’ Contestant Taihia Allegedly Made, Dealt Meth.
Q. For what types of sweepstakes/contests, do your clients vet potential winners?
A. Any contest where your brand or client will benefit from publicity should include this step. If your contest results in a “celebrity meet and greet” or any visibility for the winners, I usually recommend a background check for the potential finalists and all of their guests. Frequently, our clients ask us to vet every member of a winner’s household, including their children.
Q. Is there any type of prizewinner for whom you think vetting is unnecessary?
A. My opinion is not to vet the recipients of low-end giveaways like electronic devices, gift cards, tickets to shows, etc.
Q. I find clients are often confused between an employer background check and an investigative background check. Could you explain the difference?
A. An investigative background check, or “vetting” is for a specific purpose not related to employment. The only way for a brand to know with whom they are aligning themselves is to complete an accurate vetting of that person and their associates. A simple online employment background check will only provide unverified historical data on the person.
This data is not an accurate representation of that person’s criminal history, social history, personal history and life circumstances that are often the basis for entering a contest. An employment-level background check leaves the brand open to a multitude of potential negative backlash and bad press.
Q. Clients are also confused by the Fair Credit Reporting Act’s requirements even though they do not apply to this kind of background check. What do you tell your clients?
A. The Fair Credit Reporting Act’s guidelines for reporting are not applicable to prize promotions because there is no employment offer at stake.
Q. How do you partner with legal in putting together the promotion?
A. The advertiser or brand should work with a qualified legal professional, like yourself, in the planning stages of a prize promotion. Legal usually covers what needs to be included in the rules and what kind of releases may be necessary.
I also find legal assistance helpful in drafting language to reassure contestants’ that their personal information will not become publicly available through the vetting process.
I often turn to legal to help cover this point in the rules and help maintain public confidence in the brand. Also, it is legal that ensures the timeline for completion is protected, allowing us sufficient time to complete our checks.
Q. It is always best to involve legal in the planning stages of a promotion. Is the same true for a private investigator?
A. Yes! Often, our clients bring us in to consult about their investigative needs for each specific contest. Brands also need to factor the investigation into their production timeline. We have found that it is more cost effective to agree to an investigative game plan rather than trying to furiously piece it together at the last minute. This allows us to be staffed and scheduled in advance to facilitate a smooth completion of the contest, within their budget.
Vetting should never be an afterthought. For one thing, legal needs to cover certain logistics of background checks. For another, sometimes we are at the mercy of the counties where we are collecting records.
Q. What would you say to an advertiser who is concerned that pulling a prize from a potential winner may seem unfair?
A. By entering the promotion voluntarily, the contestant is agreeing to the rules and conditions of the contest or sweepstakes, which should always set out an investigation as a pre-condition of winning. The contestant has the option of retracting his entry should he be uncomfortable with the vetting requirements. Truthfully, this is a painless process for the potential finalists.
Q. When I discuss vetting with clients, I sometimes find that brands are concerned about making eligibility based on a willingness to have a background check. They are concerned about alienating their customer base. How do you respond to that?
A. My take on this is that the brand needs to ask itself the following question. Whose contest is it? Who do they want to enter it? Are they afraid of fewer numbers entering, and why? Many of my clients include this wording because it helps sift out the riff raff in advance.
Q. What kind of infractions do you let slide? Traffic tickets? Misdemeanors? Where do you draw the line?
A. Whatever the brand wants. It is their decision. My advice is to ignore anything that is minor, like traffic tickets for speeding or parking. Sometimes, we will overlook petty theft as a teenager. But, if anything shows up that would cause the usual public to wince, I always discuss the allegation or proven crime with the brand and allow them to decide.
Q. I usually recommend to clients that once they have decided to vet potential winners, they should examine more than criminal background but also political views, public behavior, etc. Do you agree?
A. Absolutely, yes. Some brands want to screen for potential winners who might use the brand as a platform for extremist views or organizations. I’d also like to mention that simply relying on a limited criminal records check for potential finalist is ill-advised. The gentleman we found yesterday with the disturbing online predilections has a clean criminal record. So does the drug addict. The bulk of useful intelligence for brands in on the Deep Web, not accessible with run of the mill vetting tools and certainly not indexed by Google.
If you may want to run background checks on potential prizewinners, you need to plan ahead. Make sure you have discussed this possibility with your legal team so it can draft the appropriate contest rules. Otherwise, you may not have the legal right to investigate your potential winners. Also, choose a skilled investigative team that knows how to navigate the Deep Web before the promotion starts so you can build a timeline that make sense.