Hosting a promotion on social media can be a low-cost and effective solution to creating valuable market reach when compared with traditional marketing methods. With relatively little time and spend you can raise brand awareness, build a social media presence, engage with influencers and your loyal customers, and attract new ones.

Easy? Not always. One catch may be the platform’s in-house terms of use. When using any social media platform such as Facebook, Twitter or Instagram, you are required to agree to, and comply with, their specific terms and conditions – as well as complying with New Zealand law.

Who do these in-house rules apply to?

Platform terms and conditions apply to both personal and commercial users, and create a legal contract between the user and the platform operator.

Just like any other commercial relationship your business enters into, you should carefully review the terms of use of the platform you intend to use for your promotion before you engage.

Those terms of use will generally cover and include:

  • Restrictions and requirements for both personal and commercial use, including requirements relating to promotions;
  • The platform’s privacy policy;
  • Community guidelines;
  • Community standards of use;
  • How the platform can use your content; and
  • Terms limiting the platform’s liability for any loss you may incur when using the platform.

But social media platforms aren’t all the same: different rules apply depending on the platform you want to use. That means the key to compliance is making sure that your promotion fits the particular rules of the platform you intend to use.

Incorporating the platform’s terms into your promotion terms and conditions

Platform rules often require the person running the promotion to include certain provisions in the promotion’s terms and conditions. That means that when an entrant agrees to enter the competition, they agree to certain conditions imposed by the platform. Common examples of these include requiring entrants to:

  • Release the platform provider from any liability relating to the promotion; and
  • Acknowledge that the promotion is not connected in any way to the platform provider.

You should review the terms and conditions of your promotions to ensure that they accurately reflect the requirements of the platform (or the multiple platforms) that you’re using. Failure to carry over any required terms might prompt the platform to take action – which may include shutting down your promotion mid-way through.

Matching your promotion mechanism to the platform’s terms

You should check whether your promotion mechanics – how people will enter and how you will pick a winner – comply with (or violate) the platform’s rules.

For instance, Twitter’s guidelines for promotions specifically note that posting duplicates of updates is a contravention of the Twitter terms of use, and could cause contest entrants to be automatically filtered out of Twitter’s search function. Other platforms have specific rules prohibiting promotions that encourage users to engage in spam or abusive behaviour.

On Facebook, offers can only be for a limited time, and timelines and friend connections can’t be used to administer promotions. This means that competitions which require entrants to share posts on their timeline or to tag friends to enter are in breach of Facebook’s terms of use.

Before you spend valuable time putting together a campaign, consider the finer points of the promotion’s mechanics and how this fits with the platform’s terms of use. If you want to run the promotion across a number of platforms, think about whether you can comply with all of the rules across each platform while still running a user-friendly promotion.

Right this time, right the next?

Platforms update their terms of use from time to time, often with a specific announcement to users. At the date of writing, Facebook had most recently revised its terms of use for promotions in July 2016.

You should review any changes and consider the potential consequences for your promotions when that happens. It wouldn’t be a stretch to suggest that many businesses are currently running promotions in reliance on Facebook’s old terms.

But wait, there’s more under New Zealand law

Reviewing the platform’s terms of use is a key step in any promotional campaign conducted on social media. But New Zealand law also requires your attention, including:

  • Making sure you aren’t inadvertently breaching the Gambling Act 1993, especially the prohibition on gambling via a communication device;
  • Your obligations under the Privacy Act 1993, in respect of how you will collect and store the personal information of your entrants;
  • Your compliance with the Unsolicited Electronic Messages Act 2007, in the way you will use information provided by entrants to contact them about your business; and
  • The guidance issued by the Advertising Standards Authority about using social media in advertising.

Complying with your obligations under New Zealand law generally is a key part of your compliance with the platform’s terms of use, as most platforms require you to ensure that your promotions are first and foremost compliant with local law.

How can you ensure that you social media promotion will be compliant?

If you’re undertaking a social media promotion, don’t forget to:

  • Familiarise yourself with intended social media platform terms of use. Don’t assume that the terms, conditions and definitions are the same or even similar for all of the platforms you use, or that your promotion’s mechanism will work on every platform;
  • Check any related terms and conditions, such as privacy policies, community guidelines, or specific rules relating to promotions;
  • Check whether any recent and relevant changes have been made to the applicable terms and conditions; and
  • Check that your promotion complies with New Zealand’s gambling, advertising, spam messaging, and privacy law.

Making sure your promotions are compliant with terms of use for a platform is vital: if you’re found to be in breach of any rules, you run the risk of having your promotion taken down and your access to the platform restricted. The cost of that isn’t only wasted time and effort, but potential (and embarrassing) damage to your brand.

Words by Gwendoline Keel, Sales, Marketing, Venue and Events Law Specialist at Simpson Grierson.

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