As discussed on our blog previously, here and here, a promotion sponsor must finalize Official Rules before a promotion begins. But using a third-party social media platform to administer your promotion or accept entries raises additional issues that must be considered, particularly when the promotion involves the submission of user-generated content (“UGC”).

Using a social media platform to administer your promotion raises two additional issues: (1) ensuring compliance with the platform’s specific promotion requirements; and (2) ensuring that the sponsor is protected from liability if the promotion involves UGC. This blog provides a high-level overview of issues to consider before administering your promotion on a third-party social media platform, and in particular when your promotion involves submission of UGC.

Platform-Specific Requirements

Turning first to the platform-specific requirements, most major social media and other online platforms have implemented their own promotion-specific requirements, some of which are summarized below. Keep in mind that your promotion must also comply with each platform’s’ Terms of Service and Privacy Policy, or any other relevant policies, as well.

Facebook and Instagram

• Facebook and Instagram require that the Official Rules include a release of Facebook/Instagram and an acknowledgement that the promotion is not sponsored, endorsed, or administered by or associated with Facebook/Instagram.
• Allowed:
  • Collecting entries by having users post on the page, or comment or like a post.
  • Collecting entries by having users message the page.
  • Using likes as a voting mechanism.
• Not Allowed:
  • Using Personal Timelines and friend connections to administer the promotion (e.g., “tag your friends in this post” requirements).

Twitter

• Twitter states that companies should discourage the creation of multiple accounts in the Official Rules and should include a rule stating that anyone found to use multiple accounts to enter will be ineligible.
• Twitter asks that companies discourage the posting of duplicate tweets. Twitter specifically requests that the Official Rules not encourage retweets for entry.
• Twitter recommends having entries require a hashtag (e.g., #contest or #sponsorname). Additionally, Twitter requires that the chosen hashtag be relevant to the promotion.

Snapchat

• Snapchat states that the promotion should have “clear and simple” instructions.
• Snapchat states that the promotion shouldn’t encourage “spammy behavior”, e.g., asking participants to send Snaps to friends.
• Snapchat states that the Official Rules must include a release of Snapchat and an acknowledgement that the promotion is not sponsored, endorsed, or administered by or associated with Snapchat.

Other platforms, such as LinkedIn or Pinterest, also have promotion-specific requirements, so be sure to check with a promotions attorney on the applicable rules and guidelines before planning to administer a promotion on a particular platform. These requirements are frequently revised and updated by the platforms themselves, so you should always look for the current version before you begin your promotion. By the time you read this, the rules described above may look slightly different!

User-Generated Content (“UGC”)

Beyond the platform-specific rules discussed above, promotions administered on those platforms frequently request that entrants submit an original photo, video, or other creative UGC to increase participation and engagement. But because these submissions typically are not reviewed by the promotion’s sponsor before being posted publicly, asking participants to submit UGC can result in additional potential liability for the sponsor as well.

To reduce this additional liability associated with UGC, sponsors should ensure that their Official Rules clearly define what can and cannot be included in a submission. For example, when UGC is involved, we often recommend that the Official Rules:

• List the specific requirements for the submission: image size, video length, post theme, word count, etc.;
• Require that the submission be an original work of entrant that was not submitted in a previous promotion;
• Prohibit the submission from displaying third-party intellectual property, such as trademarks, logos, trade dress, or copyrights;
• Prohibit the submission from displaying any representation of celebrities, athletes, musicians, or any other third party (public or private) without consent;
• Prohibit false or misleading statements in the submission;
• Prohibit the submission from making claims about competitors’ goods or services;
• Prohibit the submission from containing illegal, violent, profane, obscene, defamatory, slanderous, libelous language;
• Require that the entrant agree to release or license all rights in the UGC to sponsor; and
• State clearly that sponsor is not liable for the submission of UGC that violates the above rules, and that sponsor will be indemnified for any violation of the above rules.

This non-exhaustive list gives only an overview of the many issues to consider when asking participants to submit UGC, and may vary based on the goals of the promotion. Additionally, once entries are received, if the sponsor notices that a submission has violated these rules, it should generally not accept that submission as an entry into the promotion and should be sure not to repost, endorse or use the submission itself. Finally, sponsors should consider having potential the winner(s) agree to the representations listed above in a signed winner’s release before awarding the prize(s).

Running promotions on social media platforms is a great way to promote your brand and increase consumer engagement. However, as you can see, there are a host of additional issues to consider when doing so.