In our February 2011 issue of Socially Aware, we reported that, at the end of 2010, Facebook had revamped its Promotions Guidelines (the “Guidelines”) to eliminate the requirement that approval be obtained from Facebook prior to offering sweepstakes, contests or similar promotions in connection with one’s Facebook page. More recently, Facebook substantially streamlined its Guidelines, which now focus less on specific points of legal compliance and more on how Facebook features and functionality may and may not be used in connection with promotions. Here are some highlights from the revised Guidelines:
Legal Compliance – Attorneys who advise clients on contests and sweepstakes are well aware of the difficulties in navigating the labyrinth of state, federal and foreign laws that govern such promotions. Earlier versions of the Guidelines took a proactive approach to ensuring that sweepstakes, contests and similar promotions appearing on Facebook pages complied with applicable laws, by including long lists of prohibitions and restrictions against matters such as making sweepstakes available to individuals in specific jurisdictions (e.g., Belgium, Norway, Sweden or India), making promotions available to those under 18 years of age, and offering types of prizes (such as alcohol, tobacco, dairy, firearms and prescription drugs) that could raise general or promotion-specific legal issues. The revised Guidelines have eliminated most of these specific restrictions, and now provide that promotion operators themselves are “responsible for the lawful operation of [their promotions], including the official rules, offer terms and eligibility requirements (e.g., age and residency restrictions), and compliance with regulations governing the promotion and all prizes offered in connection with the promotion (e.g., registration and obtaining necessary regulatory approvals).” The Guidelines also clarify that compliance with the terms and conditions of the Guidelines does not, in itself, make a promotion lawful. Facebook’s new approach is a valuable reminder for promotion operators to seek legal guidance when designing, drafting official rules for, and administering sweepstakes, contests and promotion, whether on social media platforms or otherwise.
Use of Facebook Features and Functionality – In contrast to their new approach to legal compliance, the revised Guidelines now provide more detail on how promotion operators may and may not use Facebook features and functionality in connection with their promotions. (Some of this detail had been included in “examples” in the prior version of the Guidelines, but may not have been clear from the body of the Guidelines.) A few key examples:
• Voting – For years, Internet-based contests have relied on public judging/voting on participants’ entries to determine finalists and winners. Section 5 of Facebook’s revised Guidelines provide that promotion operators “must not use Facebook features or functionality, such as the Like button, as a voting mechanism for a promotion.” This shifts the burden of supplying a usable and accurate voting mechanism onto promotion operators themselves. We note that Section 1 of the Guidelines requires that all promotions on Facebook “must be administered with Apps on Facebook.com”, so it is unclear whether a voting mechanism within a custom app may be used notwithstanding this blanket prohibition.
• Means of entry vs. conditions for entry – The revised Guidelines make a subtle but important distinction between, on one hand, using Facebook features as a mechanism for registering for or entering a promotion, and on the other hand, conditioning registration or entry on taking a particular Facebook action. Per Section 3 of the revised Guidelines, promotion operators are flatly prohibited from using Facebook features or functionalities (e.g., “liking” a Page, posting an item of content or joining a group) as the actual means of entry for a promotion, without exception. On the other hand, per Section 4 of the revised Guidelines, promotion operators are prohibited from “condition[ing]” registration for or entry in a promotion on taking actions using Facebook features or functions, but with an important exception—registration or entry may be conditioned on a user “liking a Page, checking in to a Place, or connecting to [the promotion operator’s] app.” So, for example, liking a Page can serve as a requirement for participation in a promotion, but it cannot be the way for a participant to enter the promotion.
• Notifying winners – A promotion’s official rules typically state how and when winners will be notified. Section 6 of the revised Guidelines now prohibits promotion operators from notifying winners “through Facebook, such as through Facebook messages, chat, or posts on profiles or Pages.” (Again, it is unclear whether winners may be notified through a promotion’s app on the Facebook platform.)
Despite the various changes to Facebook’s Guidelines, one fundamental principle remains the same: The Guidelines continue to govern both communication about, and administration of, promotions on Facebook. And these two terms are sweeping in scope. “Communication” includes “promoting, advertising or referencing a promotion in any way on Facebook, e.g., in ads, on a Page, or in a Wall post,” and “administration” includes “the operation of any element of the promotion, such as collecting entries, conducting a drawing, judging entries, or notifying winners.” This means that even mentioning your promotion on Facebook is subject to the Guidelines. So, before launching your next promotion involving Facebook—whether you are actively operating the promotion on Facebook, or merely referencing an independently run promotion—remember to review the current Guidelines to ensure compliance.
