On December 1, 2010, social network giant Facebook unveiled updated guidelines governing the administration of, and communications about, any sweepstakes, contest, competition or similar offering on Facebook (the “Guidelines”). One of the major changes is that Facebook previously required that all promotions run on their platform receive written approval prior to launch. Facebook further required a certain minimum advertising spend. As of December 1, 2010, however, these requirements have been removed. The updates also appear to focus on minimizing commercially motivated actions taken on Facebook by users (which would enter into the user’s “news feed”), to focus on truly personal and relationship oriented actions. This legal alert provides a brief summary of the updated Guidelines.  

The updated Guidelines are divided into two main sections addressing (1) promotions administered on Facebook, and (2) general restrictions regarding all promotions.

I. Promotions Administered on Facebook

General

All promotions administered on Facebook must be administered solely through third-party applications on the Facebook Platform (Applications). Thus, Facebook users may not administer any aspect of a promotion through their personal, event, or other pages. The Guidelines define “administration of a promotion” broadly to include “operation of any element of the promotion, such as collecting entries, conducting a drawing, judging entries, or notifying winners.”

For example, promotion administrators may not notify winners via Facebook communication tools such as Facebook messages, chat, or posts on profiles or pages. Such communications would constitute the administration of a promotion outside of an Application. Winners may be notified, however, through other means such as e-mail or regular mail addresses that an Application collects during the entry process.

Entry  

Users may only enter a promotion administered on Facebook through two locations:  (1) the canvas page of the Application, or (2) the Application box in a tab on a Facebook page. Thus, the Guidelines prohibit administering promotions on Facebook that automatically enter a user when he or she, for example, “likes” a page or “checks in” to a place.

Required Disclosures

The Guidelines require that two sets of specific disclosures be made in connection with any promotion administered on Facebook. First, the following disclosure must be included adjacent to any promotion entry field:  

This promotion is in no way sponsored, endorsed or administered by, or associated with, Facebook. You are providing your information to [recipient(s) of information] and not to Facebook. The information you provide will only be used for [description of each way that recipients’ plan to use the user's information].  

Second, the promotion’s official rules must include:  (1) a complete release of Facebook by each entrant or participant, and (2) an acknowledgement that “the promotion is in no way sponsored, endorsed or administered by, or associated with, Facebook.”

 

II. General Restrictions Regarding Promotions

Under the Guidelines, the following restrictions apply not only to promotions administered on Facebook, but also to any communication on Facebook regarding a promotion, whether administered on Facebook or not. The Guidelines define “communications regarding promotions” broadly to include “promoting, advertising or referencing a promotion in any way on Facebook, for example, in ads, on a page, or in a status update.”

General Restrictions

A Facebook user may not communicate about or administer a promotion on Facebook if:

  • The promotion is open or marketed to individuals who are under the age of 18;
  •   The promotion is open to individuals who reside in a country embargoed by the United States;
  • The promotion, if a sweepstakes[1], is open to individuals residing in Belgium, Norway, Sweden, or India;
  • The promotion's objective is to promote any of the following product categories: gambling, tobacco, firearms, prescription drugs, or gasoline;
  • The prize or any part of the prize includes alcohol, tobacco, diary, firearms, or prescription drugs; or
  • The promotion is a sweepstakes that conditions entry upon the purchase of a product, completion of a lengthy task, or other form of consideration.

Restrictions on Entry Requirements

It is common for promotion administrators to condition entry upon the entrant doing some affirmative act. With respect to actions that can be performed on Facebook, entry into a promotion may be conditioned only upon the entrant’s “liking” a page, “checking in” to a place, or connecting to the promotion administrator’s platform integration. Entry may not be conditioned upon a user taking any other action on Facebook, such as “liking” a status update or photo, commenting on a wall, or uploading a photo.

Thus, while the Guidelines restrict the types of Facebook-specific conduct that may be required for entry, they contain no restrictions regarding actions taken on Applications. For example, entry may not be conditioned on a user providing any content on Facebook itself (e.g., posting on a wall page or uploading a photo), but entry may be conditioned on the user providing such content to an Application.

Restrictions on Statements Regarding Facebook

Regardless of whether a promotion is administered on Facebook, a promotion administrator may not directly or indirectly indicate that Facebook is a sponsor or administrator of, or in any way associated with, a promotion.

Restrictions Regarding Facebook’s Intellectual Property

A promotion administrator may not use Facebook’s name, trademarks, trade names, copyrights, or any other intellectual property, or even mention “Facebook,” in the rules or materials relating to any promotion. This rule does not apply, however, to communications intended to notify users of any of the permissible entry requirements mentioned above.

There are additional exemptions to this rule for promotions administered on Facebook. In those cases, promotion administrators may mention “Facebook” in the following two ways:  

·    For purposes of including the required disclosures (mentioned above) in the promotion’s rules.

·    By stating to a prospective entrant: "You can enter the promotion through the [Application name] Application on the Facebook Platform. You can also find the Application on the [tab name] tab on the [Page name] Page on Facebook."  

Thus, a promotion may not instruct prospective entrants to sign up for a “Facebook” account before they enter the promotion. However, a promotion may, as described above, instruct entrants to visit an Application on the “Facebook Platform” in order to enter the promotion. Since users must have a Facebook account in order to access any Application, they will be prompted to sign up for a Facebook account when they attempt to visit the promotion administrator’s Application.

Remedies

The Guidelines expressly reserve Facebook’s right to remove any materials relating to a promotion, or to disable a promotion administrator’s page, Application or account, if Facebook determines in its sole discretion that the administrator has violated any of Facebook’s policies.

Additional details and related policies, guidelines and examples can be accessed at: www.facebook.com/promotions_guidelines.php.

Kilpatrick Stockton’s Advertising, Promotions, & Media group represents advertisers and brand marketers in a broad range of industries, and the group’s attorneys have extensive experience in advertising, technology, intellectual property, and media law. Please feel free to contact us for more information about the issues contained in this Alert. 


[1] The Guidelines distinguish between promotions that are “sweepstakes” and promotions that are “contests or competitions.”  A “sweepstakes” is a promotion with a prize and winner selected on the basis of chance. “Contests” and “competitions” also include a prize and a winner, but the winner is selected on the basis of skill (i.e., through judging based on specific criteria).

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