Twitter sweepstakes and contests abound, along with several common mistakes. Below are five areas that require attention to avoid legal risk.
1. Rules Mistake.
A sweepstakes or contest requires full rules in order to create a clear contract with the consumer. Too many twitter promotions abandon this step. Marketers may see the campaign as low risk because it is short term in nature. Risk assessment, however, is not just determined by the length of a promotion. In addition, one has to include considerations of brand fame, geographic scope, and the promotion’s potential to go viral. Another reason marketers abandon rules is that they cannot figure out how to make disclosures in 140 characters. Links to official rules on a website can often solve the problem. Every promotion should have complete rules to protect the brand against problems when things go wrong.
2. Brand Trivia Campaign Mistake.
Is the trivia so difficult it takes substantial effort to find the answer deep in a website? Are you asking people to follow your tweet feed for a substantial period of time and read each day for clues? A regulator may see that requirement as substantial effort. If a sweepstakes requires substantial effort to enter, an alternate method of entry is required.
3. Speed to Enter Mistake.
Speed is not skill in the online context. The element of chance predominates over skill in determining whether a consumer is the “first” to tweet about something. If your twitter campaign relies on speed, realize that it may not be a skill game, but rather a sweepstakes in need of an alternate method of entry.
4. Coupon/Discount Offer Mistake.
Have you made adequate disclosure of any limitations, particularly when using the word “free”? Have you determined that your offer is a premium offer, or are you inadvertently running an illegal lottery in giving away free items? A premium means there is no chance involved. Everybody receives the same item. If you are giving away different items, and chance determines which item the consumer receives, this is not a premium offer.
5. Tweet to Enter Mistake
If you ask consumers to tweet about your company or its products or services in exchange for a sweepstakes entry, that may be seen as a material connection under the FTC Endorsement and Testimonial Guidelines and require the use of hashtags to disclose the connection. In addition, telling them what to tweet may be seen as putting words in their mouths and preventing an honest testimonial. Consumers should use their own language in tweets.
© Kyle-Beth Hilfer, P.C. 2011. Kyle-Beth Hilfer, Esq. specializes in advertising, marketing, promotions, intellectual property and new media law. She is also Of Counsel to Collen IP, a full service intellectual property law firm. For more information about her law practice and more blog posts, please visit Kyle-Beth Hilfer, P.C. (where this post originally appeared). Twitter: @kbhilferlaw.