As brands begin to emerge into the social media world it is vital that we at The Buddy Group, as their audience engagement ambassadors, not only establish their presences on these mediums but also ensure that they comply with the legal requirements and avoidpotential issues that may arise from making their brand more interactive. Although social media continues to have some unexplored territory basic legal considerations still apply when creating content for social media outlets. The Buddy Group’s Audience Engagement team recently held an internal briefing about the things to watch for and thought some of our followers would find it useful.
DISCLAIMER (because what would be a legal post without that?): Content should be considered a guideline and his is not legal advice. We strongly encourage you consult with your own legal counsel.
Now that we’ve given you the disclaimer, let’s get started…
Giveaways, Sweepstakes, Contests—
No matter how you phrase it, rules apply—otherwise it can be considered illegal. I know, who would have thought a giveaway that randomly selected winners and had a prize under $100 could become a legal issue, but unfortunately, folks, it can. Even the smallest sweepstakes should have a clear set of terms or rules. Depending on the amount of the prize, lump sum or total product value, you may even need to register the promotion and get bonded in some states. So what are the red flags that should make you think twice before executing a sweepstakes?
It’s actually pretty simple. An illegal sweepstakes consists of three elements: prize, chance and consideration. In order to have a legitimate sweepstakes one of the three elements has to be eliminated. Otherwise the contest could be construed as illegal gambling.
Prize. Well this one’s pretty easy. Who is going to have a sweepstakes without a prize? So let’s leave this element alone in order to attract people to participate. This means either chance or consideration has to be adjusted to be in compliance with sweepstakes regulations. But you might want to make sure that your total prize value is under $5,000. That will help you avoid registration and bonding requirements in some states.
- Chance. One way to eliminate chance, and perhaps the easiest, is making your contest a game of skill. For instance, a trivia, contest, or completing a task which can be judged, etc. Basically, the winner has to compete using some level of skill or special knowledge to win the prize.
- Consideration. This can be thought of as a cost of participation which can me monetary or something less tangible like the use of your time. The simplest way to eliminate consideration within a sweepstakes is by having a “no purchase necessary” option making entering the contest available to everyone. If you have a purchase option, such as requiring a purchase, or other consideration like watching a 2-hour sales presentation video you should also allow a backdoor type entry, such as a mail-in entry.
Brand or Product Claims—
This really comes down to wording. How are you presenting your statement to your audience?
Pricing Claims: in order to advertise a discount one must have regular pricing or another benchmark price, such as a competitor offering the same product at a higher rate—sorry folks, there is no such thing as a permanent discount. You must also clearly identify any conditions of that pricing—Buy One Get One? Well, can they buy a $5 item and get a $200 product for free? Probably not so you better say equal or lesser value and tell them how long the offer is good for. Otherwise you could find yourself giving away more $200 items than you budgeted for.
Performance Claims: My mama always said “don’t say it unless you can prove it,” and she was right. This means you cannot say our product is “faster than lightening” or “able to go from zero to sixty without making a sound” or make other performance claims unless you can substantiate it.
Comparative Claims: Along the lines of Performance Claims, you better be sure you’re right if you think you’re better than someone else. Unless you can prove that your product is the best in particular category, or better than or faster than a competitor you should avoid such claims. You might be able to say simply “We are the best!” or “Product X is #1.” In the right context, these claims may be considered merely puffery, and not claims that need substantiation.
There are simple and honest ways around these types of limitations with creative copy-writing, but make sure to check with your compliance department before publishing content making a claim.
Other People’s Intellectual Property
Finally, who likes their property to be taken without their permission? Between you and me, I can’t stand when someone steals last soda from the fridge and leaves a sticky note saying “IOU” in its place. Many companies and brands feel the same way when they see others using their slogans, trademarks, items without proper copyrights, even images of famous places, music photos, etc.
If you are using any type of image, copy or asset that is the property of others or contains another brand, for your own self promotion it can be considered infringement. You might not be able to include the name of another brand in your comment about your electronic product unless they have given you the right to leverage their brand with your company, especially if you’re implying a relationship to heighten visibility of your brand. If you are shooting a video on location, make sure you have the permits from the property owners whose brands and recognizable icons might appear the background. These suggestions are relative to exposure the content will receive but in the end, like they always say, “better be safe than sorry.”
So, is it all doom and gloom? Definitely not! Buck up campers. It may seem overwhelming, but that’s why we have promotion agencies and lawyers—to help us ensure that our brands are safe from lawsuits and damaging, or potentially costly situations. So don’t hesitate to strike up a conversation with your friendly legal professional if you have any questions, content or promotions that may raise an eyebrow. They’ll help ensure we’re all playing nicely in the sand box.