Will The Man allow my twitter give away?
April 15, 2010 6:53 AM Subscribe
What are the legal issues with a give-away or sweepstakes on Twitter/FB? What makes it a sweepstakes? YANAL
So we are debating giving away free product occasionally. Nothing valued more than say, $20. The usual retweet this to win type stuff. What are the legal implications of this. Clearly no purchase is necessary. Is that sweepstakes or just a modified giveaway?
Two additional issues:
1) This will be on going - there is not overarching contest or time frame.
2) If we need legalese how do we post it on twitter? Just put a page on our website and bit.ly it or whatever every couple weeks to remind people we have legalese?
I would love to avoid a lawyer. or at least limit it. I didn't know if there was enough precedent that we could be 90% accurate in our guess.
So we are debating giving away free product occasionally. Nothing valued more than say, $20. The usual retweet this to win type stuff. What are the legal implications of this. Clearly no purchase is necessary. Is that sweepstakes or just a modified giveaway?
Two additional issues:
1) This will be on going - there is not overarching contest or time frame.
2) If we need legalese how do we post it on twitter? Just put a page on our website and bit.ly it or whatever every couple weeks to remind people we have legalese?
I would love to avoid a lawyer. or at least limit it. I didn't know if there was enough precedent that we could be 90% accurate in our guess.
Contests, sadly, really do require a lawyer - or you have to pray not to attract any attention from one. This is a good example of lawyer-vetted contest rules - note that they exclude Quebec and Rhode Island residents from eligibility. This is because those two territories have additional contest regulations that are frankly too annoying to be worth dealing with. God, I hate administering contests.
Of course, lots and lots of people run contests without doing the legal work. I would guess the vast majority of them don't get caught and, as long as they aren't trying to send things through customs, never have a problem. But there is a certain amount of risk.
(Minor disclaimer: I used to work for NCsoft; no longer do.)
posted by restless_nomad at 7:25 AM on April 15, 2010
Of course, lots and lots of people run contests without doing the legal work. I would guess the vast majority of them don't get caught and, as long as they aren't trying to send things through customs, never have a problem. But there is a certain amount of risk.
(Minor disclaimer: I used to work for NCsoft; no longer do.)
posted by restless_nomad at 7:25 AM on April 15, 2010
IANYL, this is not legal advice. Yes, you need a page of legalese. I don't know that there are any cases holding that doing something like linking a rules page through Twitter is enough, but I would think that so long as the link is prominently available and clear to users, it should suffice. This is a somewhat unsettled issue that requires a lawyer, but here are a couple of thoughts to flag at least a few things for you, so that you can have a more meaningful discussion with an attorney.
(1) Be very sure to make it clear that users are not providing any consideration whatsoever to have a chance to win. (Consideration can be pretty much anything of value for opportunity to participate.) It does not sound like your current plan contemplates this, but it's something to always think about going forward - requiring consideration can easily transform a sweepstakes into a lottery, which private parties are typically prohibited from running under federal and state laws. So you may want to include some disclaimer (yes, legalese) along the lines of "No purchase necessary," "Purchase will not increase your likelihood of winning," etc. Finally, if you are intending to retain e-mail addresses of entrants, this can trigger more complicated privacy issues. (It occurs to me also that since an e-mail address is of some value to a company, it may be interpreted as consideration - but this is just speculation.)
(2) The promotion should have official rules posted somewhere that will set forth who is eligible to participate (geographic and age limits - definitely limit it just to U.S., and limit it to participants over 18 just to avoid things like Children's Online Privacy Protection Act, etc.), how to participate, the prizes to be disbursed, how the prize winner will be determined, and odds (fine to say that odds will depend on the number of eligible entries the sweepstakes receive).
(3) Several states (at least FL and NY) require sponsors of sweepstakes to register, post a bond prior to initiating the contest, submit a list of winners to state authorities, etc. However, to my knowledge, this usually kicks in only when the prize pool exceeds some statutory minimum, which is usually at least a few thousand $. If someone is more knowledgeable about state law on this, it would be great if you could chime in.
(4) Advertising - generally, you would need to disclose all relevant material terms (see #1), and the usual CYA disclaimers (void where prohibited, no purchase necessary, start / end of promotions, etc.).
posted by Pontius Pilate at 7:42 AM on April 15, 2010
(1) Be very sure to make it clear that users are not providing any consideration whatsoever to have a chance to win. (Consideration can be pretty much anything of value for opportunity to participate.) It does not sound like your current plan contemplates this, but it's something to always think about going forward - requiring consideration can easily transform a sweepstakes into a lottery, which private parties are typically prohibited from running under federal and state laws. So you may want to include some disclaimer (yes, legalese) along the lines of "No purchase necessary," "Purchase will not increase your likelihood of winning," etc. Finally, if you are intending to retain e-mail addresses of entrants, this can trigger more complicated privacy issues. (It occurs to me also that since an e-mail address is of some value to a company, it may be interpreted as consideration - but this is just speculation.)
(2) The promotion should have official rules posted somewhere that will set forth who is eligible to participate (geographic and age limits - definitely limit it just to U.S., and limit it to participants over 18 just to avoid things like Children's Online Privacy Protection Act, etc.), how to participate, the prizes to be disbursed, how the prize winner will be determined, and odds (fine to say that odds will depend on the number of eligible entries the sweepstakes receive).
(3) Several states (at least FL and NY) require sponsors of sweepstakes to register, post a bond prior to initiating the contest, submit a list of winners to state authorities, etc. However, to my knowledge, this usually kicks in only when the prize pool exceeds some statutory minimum, which is usually at least a few thousand $. If someone is more knowledgeable about state law on this, it would be great if you could chime in.
(4) Advertising - generally, you would need to disclose all relevant material terms (see #1), and the usual CYA disclaimers (void where prohibited, no purchase necessary, start / end of promotions, etc.).
posted by Pontius Pilate at 7:42 AM on April 15, 2010
You should get a lawyer now, to avoid needing one later. Contest/sweepstakes rules are VERY complicated, and it's best to have a lawyer vet your legalese and plans before you post them.
I plan and promote sweepstakes at work all the time. The legal department is on my speed-dial.
posted by peanut_mcgillicuty at 8:52 AM on April 15, 2010
I plan and promote sweepstakes at work all the time. The legal department is on my speed-dial.
posted by peanut_mcgillicuty at 8:52 AM on April 15, 2010
And consideration can include providing personal information to be added to a mailing list, not just purchasing something.
While getting a lawyer is the best option, you could also find a similar contest run by a large company that you know have lawyers and start from those. If you do hire a lawyer, find one who actually knows about contests, not your next door neighbor who drafts wills or litigates personal injury cases.
posted by Sukey Says at 12:04 PM on April 15, 2010
While getting a lawyer is the best option, you could also find a similar contest run by a large company that you know have lawyers and start from those. If you do hire a lawyer, find one who actually knows about contests, not your next door neighbor who drafts wills or litigates personal injury cases.
posted by Sukey Says at 12:04 PM on April 15, 2010
This thread is closed to new comments.
I was involved in the administration of a contest for one of Sun Microsystem's open source projects a couple of years ago. Sun's lawyers were also involved in setting this up, which helped me to understand how complicated things get when a contest is open to those outside the United States. It seems that a lot of countries treat contests as gambling and want to tax them. Many other countries, and even jurisdictions within a country (IIRC Quebec is one), have additional rules which are meant to reduce fraud but which are nearly impossible to comply with in practice.
Our contest was based on (programming) skill, not on chance. This was apparently an important distinction that made it easier to open up the contest to people in various countries.
posted by tomwheeler at 7:10 AM on April 15, 2010