Edwards Wildman Client Advisory: Apps No Longer Required: Facebook Updates Promotions Guidelines To Allow On-Platform Promotions



    Does your company administer promotions, like contests and sweepstakes on Facebook? If so, Facebook changed its rules and now no longer requires that promotions be administered through an application. While marketing teams scramble to come up with new promotions to administer directly on their company’s brand Pages, lawyers should be reviewing Facebook’s newly revised Page Terms and Promotion Guidelines to make sure your company’s upcoming contests and sweepstakes will be compliant with Facebook’s new requirements.

    On August 27, 2013, Facebook announced updates to its Promotion Guidelines to make it easier for brands and companies to administer contests and sweepstakes on the Facebook platform. Here is a quick summary of the most important updates to Facebook’s Promotion Guidelines and Page Terms:

    • Apps Are Now Optional: Facebook eliminated the requirement that promotions be administered through an application that interacts with a company’s Facebook Page. When administering promotions on Facebook, companies and brands now have the flexibility to:
      • Collect entries by having users post on the company’s Page or comment/like a Page or post;
      • Collect entries by having users message the Page; or
      • Utilize the “like” button as a voting mechanism.
    • Personal Timelines Still Off Limits: As was the case before, companies still cannot administer promotions that allow an individual to post on their personal Timeline in order to receive an entry. Thus, you cannot require a user to post content on their own personal Timeline as an entry mechanism for either a contest or a sweepstakes. If you want a user to submit content such as a photo or video as part of the entry process, you should instead require the user to post that content directly on your company’s Page.
    • Accurate Tagging of Photos Required: Facebook’s revised Page Terms now prohibit Pages from encouraging people to tag themselves in content that they are not actually depicted in. For example, while it is ok to ask people to submit names for a new product in exchange for a chance to win a prize, it is not ok to ask people to tag themselves in a picture of a new product in exchange for a chance to win the prize unless the individual actually appears in the photo.
    • Requirements That Haven’t Changed: Facebook’s Pages Terms still include certain requirements for administering promotions on the Facebook platform that existed prior to the recent update. Sponsors of promotions administered on the Facebook platform must include: (i) a complete release for Facebook from each entrant or participant; and (ii) an acknowledgment that the promotion is in no way sponsored, endorsed or administered by, or associated with, Facebook. Also, of course, companies can still choose to administer promotions via their Page tabs and apps so long as the promotion is run in accordance with Facebook’s Promotion Guidelines.

    It is important to keep in mind that there may be still good business and legal reasons to continue to run your company’s promotional campaigns through an application on Facebook. Apps provide more space and flexibility for content than Page posts alone and promotions that run through an application can collect data in a secure way, require entrants to accept (i.e., contractually agree through a click-wrap) the Official Rules for the promotion, especially if your company wants a license from your entrants to use the content submitted as part of the promotion off of the Facebook platform, and an app provides a mechanism to post a privacy policy so that you can collect and use the entrant’s data for purposes consistent with your company’s posted privacy policy.

    Finally, it is always important to keep in mind that each social media platform on which you wish to promote your product, service or brand likely has its own terms of use that may determine issues of ownership and control of the content and activities on that platform. Some websites and other social media platforms other than Facebook prohibit any commercial use other than as a paid advertiser. Some sites have carefully constructed terms of use that obtain rights to a user’s name and likeness and content for association with third party brands, while others do not. Failure to clearly obtain these rights has led to class action lawsuits, including one Facebook settled for millions of dollars arising out of a version of its terms of use that has since been changed. Also, Facebook’s affiliate Instagram is currently defending a class action arising out of its modification to its user terms to expand the scope of permitted commercial use of user content.

    Before engaging in a promotional campaign on or in connection with a third party site or service, it is a good idea to review and follow the rules of the applicable venue and to evaluate the operator’s user terms of use. Care should be taken before using users’ name, likeness or content off of the service on which it originated since the sponsor lacks privity of contract with the third party service user and such services’ terms of use rarely obtain rights for sponsors to do so. Again, this is where use of an app is helpful – you can obtain rights and waivers directly from the user.

    We regularly work with leading entertainment companies, brands, ad agencies and media outlets with respect to online and mobile advertising, marketing and promotions from concept to execution. Before launching your next social media or other digital marketing campaign, please contact the Edwards Wildman attorney responsible for your matters or any of the authors above.

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