the legal side of social media marketing - cisca brouwer

SOCIAL MEDIA MARKETING:

THE LEGAL SIDE

multifamily-social-media.comThis presentation does not constitute legal advice or a legal opinion on any matter discussed. This presentation is for educational purposes only.

You Can Play on Third Party Turf…Kellogg’s Amazing Spider-Man 2

Social Media (Facebook, Twitter and Google+) posts on 4/30 – 207,261 Impressions


Kellogg’s Man of Steel


Facebook: posting to 1.7MM Fandango Fans Twitter: 2 Twitter postings to 119k followers (238k total)

…or on Your Own Turf.


Agenda

•Overview of Key Applicable Laws•Third Party Platform Requirements•Promotions Law Quick Hit•Content Considerations•Charity/Cause Marketing


Key Applicable Laws

• Federal and State Consumer Protection Laws• Copyright Law• Trademark Law• Right of Publicity Laws• Lottery/Promotions Laws


Consumer Protection Laws• Traditional consumer protections apply online and on mobile:

– FTC (see .com Disclosures and Guides Concerning the use of Endorsements and Testimonials in Advertising)

– Lanham Act (Unfair Competition) – National Advertising Division of BBB (NAD)

• Additional Guidelines:– Trade Association Guidelines (DMA, WOMMA, MMA)– IAB Guidelines (see IAB.net)– Digital Guiding Principles for Alcohol Companies Engaged in Social

Media


FTC’s .com Disclosures• If a disclosure is necessary to prevent an ad from being deceptive,

unfair or otherwise in violation of an FTC rule, and it is not possible to make the disclosure clearly and conspicuously on a particular platform, then that platform should not be used to run the ad.

• Disclosures should be as close as possible to the relevant claim.• Avoid pop ups as they are often blocked.• Label hyperlinks as specifically as possible and confirm they

function on all devices.• Bloggers or other online publishers must disclose relationships with

advertisers when they receive free products for review, compensation or other consideration.


FTC’s Guides on Endorsements and Testimonials in Advertising

• Disclose any material connection–Payment or other benefit–Employee status•Consumer endorsement must reflect typical consumer experience.•If an endorsement suggests a person (including celebrities) uses a product, the person must actually use the product and the endorsement must accurately reflect the person’s experience.•FDA views an advertiser’s “Like” of a third party’s social media post as an endorsement of that post, including any claims made in the post.


Third Party Platform Requirements


Promotions on FacebookFacebook Promotion Guidelines:•Promotions on Facebook can be administered within Apps on Facebook OR on Page Timelines, but NOT on personal Timelines.•Facebook features can be used as the primary or automatic registration/entry mechanism (excluding “like” feature).•Recently updated Page Terms prohibit Pages from tagging or encouraging users to tag themselves in content where they are not actually depicted.

– Example: It is permissible to ask users to submit names of a new product in exchange for a chance to win a prize; however, it is not permissible to ask users to tag themselves in images of the new product in exchange for a chance to win a prize.

•Promotions on Facebook must include the following disclosures:– A complete release of Facebook by each entrant or participant.– Acknowledgment that the promotion is in no way sponsored, endorsed, administered by or

associated with Facebook.– Links to promotion’s Official Rules, Sponsor’s Privacy Policy and Sponsor’s Terms of Use for its

website.


Promotions on FacebookFacebook Promotion Guidelines (cont.):•Cannot use Facebook’s name, trademarks or other IP except as needed to comply with the Facebook Promotions Guidelines.•An option for ensuring compliance with the Facebook Promotions Guidelines is to engage a third party developer that is certified by Facebook.•Remember that complying with the Facebook Promotions Guidelines does NOT guarantee that a promotion will be lawful.•Sponsor must link to its own Privacy Policy where personal information is collected.•Sponsor is responsible for the lawful operation of a promotion, including:

– The Official Rules– Offer terms and eligibility requirements (i.e. age and residency restrictions); and– Compliance with applicable rules and regulations governing the promotion and all prizes offered (i.e.

registration and obtaining necessary regulatory approvals).

•Sponsor can notify promotion winners through Facebook messages, chat or posts on Timelines or brand pages.


Promotions on FacebookFacebook Platform Policy Updates:•Effective Nov. 5, 2014, Facebook revised its Platform Policy to restrict the use of its “like” functionality. Page owners are no longer allowed to “like-gate” a promotion or otherwise require a consumer to like a page to gain access to content via a Facebook application.•“You must not incentivize people to use social plugins or to like a Page…This includes offering rewards, or gating apps or app content based on whether or not a person has liked a Page.”•However, marketers can still ask users to like a Page, as long as no incentive is offered for liking the Page.•Advertisers may still use other techniques to incentivize consumers to log in to an app, check in at a place or enter a promotion on an app’s page.•These changes do not affect Facebook’s Pages Terms, which continue to allow marketers to administer promotions on a company’s Facebook page.


Facebook Rules• Advertising Guidelines https://www.facebook.com/ad_guidelines.php • Platform Policy https://developers.facebook.com/policy/ • Page Terms https://www.facebook.com/page_guidelines.php • Website Terms https://www.facebook.com/legal/terms • Privacy https://www.facebook.com/about/privacy/ • Principles https://www.facebook.com/principles.php


https://www.facebook.com/ad_guidelines.php

https://developers.facebook.com/policy/

https://www.facebook.com/page_guidelines.php

https://www.facebook.com/legal/terms

https://www.facebook.com/about/privacy/

https://www.facebook.com/principles.php

Promotions on Twitter• Twitter Rules (https://support.twitter.com/articles/18311-the-twitter-rules)• Twitter for Business (https://business.twitter.com/) • Guidelines for Contests on Twitter (https://support.twitter.com/articles/68877-

guidelines-for-contests-on-twitter)• Brand Policy (https://about.twitter.com/press/twitter-brand-policy)

Twitter Policies:• Twitter Parties—specific hashtags• Encourage use of #paidad, #ad, #paid, #sponsored, #sweeps, #contest or “Ad:” at

the beginning of the tweet (FTC requirement).• Must tweet link to the full official rules and entry details. • Follow each call to action with a tweet which includes required disclosures.


https://support.twitter.com/articles/18311-the-twitter-rules

https://support.twitter.com/articles/18311-the-twitter-rules

https://business.twitter.com/

https://support.twitter.com/articles/68877-guidelines-for-contests-on-twitter

Promotions on Twitter (Cont’d)• Discourage the creation of multiple Twitter accounts.• Discourage posting of the same Tweet(s) repeatedly.• Ask users to include an @reply to you in their update so that you can

see all of the entries.• Encourage use of your hashtags with topics relevant to the promotion.• Cannot use Twitter name or marks to imply sponsorship of promotion.• Tip: Include language in the Official Rules notifying entrants that they

could be disqualified, and/or not receive notifications, if their privacy settings prevent sponsor from seeing the entry or messaging the entrant.


Promotions on Instagram• Notify entrants that their privacy settings must be such that sponsor can see

entries and contact winners.• Instagram for Business guidelines suggest best practices:

– Using hashtags to collect photos from your followers around a certain theme;– Spread the word on other sites—website, Facebook, etc.– Use Instagram API to pull photo streams into an official Instagram feed on

your website; and – Pick a reward that appeals to your target audience.– Get involved on Instagram to build familiarity with the app amongst your

customers/consumers; and– Give it time—spread out the term to give users plenty of time to learn about

the promotion and create submissions.• Instagram Promotions Guidelines https://help.instagram.com/179379842258600• Instagram for Business http://blog.business.instagram.com/


Promotions on Pinterest• Companies may now verify company-sponsored pages with a “website verification

badge” which is currently only available for top-level domains.• Promotions and marketing are prohibited on individual user pinboards, pages and

Pinterest accounts.• Similar to Facebook, Pinterest prohibits marketing or advertising materials from

suggesting that Pinterest is sponsoring the promotion or formally affiliated with the promotion.

• The guidelines advise against running a sweepstakes where each pin, repin, pinboard, follow or “like” represents an entry or vote due to functionality limitations which inhibit accurate tracking of such types of entries.

• Complying with the Pinterest guidelines does NOT guarantee that a promotion will be lawful.

• Pinterest Brand Guidelines http://business.pinterest.com/en/brand-guidelines • Pinterest Acceptable Use Guidelines https://about.pinterest.com/en/acceptable-

use-policy


Promotions on Pinterest (Cont’d)Best practices for running a Pinterest promotion:–Include an acknowledgement that the promotion is in no way sponsored, endorsed, administered by, or associated with Pinterest;–Require entrants to mark submissions with a hashtag specifically designated for the promotion;–Avoid “spammy” behavior—reward quality over quantity;–Don’t make entrants pin or repin promotion rules;–Don’t limit eligible pins and/or pinboards to those utilizing only images from a fixed or limited selection; –Encourage entrants to monitor their entry boards for notices from promotion sponsor; and–Don’t require a minimum number of pins for promotion entry or ask for comments.


Promotions on Google+ and VineGoogle+

• Google+ Contest and Promotions Policy prohibits contests, sweepstakes, offers, coupons or other promotions from being run directly on Google+ or in a manner that requires use of Google+ features/functionality (https://google.com/+/policy/contestspolicy.html)

• May display a link on Google+ to a separate promo site so long as the business (and not Google) is the sole sponsor.

• Google reserves the right to remove any promotion content from a Google+ Page for any reason.

• Promotions must comply with all Google policies and terms.

Vine (Twitter)• Vine’s Terms of Service do not currently address the use of Vine in sweepstakes or contests

(https://vine.co/terms) • Utilize Twitter best practices:

–Encourage the use of hashtags with topics relevant to the promotion; and–Ask users to include an @reply to you in their update so that you have visibility of all entries.


Promotions Law Quick Hit


Sweepstakes or Contest? • A promotion that contains these three elements constitutes an illegal

lottery under federal and state laws:

1) Consideration (something of value provided by entrant)

2) Chance

3) Prize• Remove any one of the three elements to run a legal sweepstakes or

contest. • Sweepstakes: removes consideration. Random (chance) drawings for a

prize; free to enter.• Contest: removes chance. Prize is awarded based on measurable skill.


What is Consideration?• Giving up something of value to participate.• Consideration examples:

– Ticket/product purchase– Substantial effort or personal info required of the entrant– Store visits– Text messaging fees

• Typically not consideration:– Postage (except in VT)– Internet access– Completing a simple entry form– Opening a Twitter/Facebook/Instagram account– “Liking” a Facebook Page– Posting a comment or photo to a Facebook Page– Retweeting a message– “Following” an advertiser

• Avoid the consideration issue by providing an Alternate Method of Entry [AMOE] (e.g. a postcard or email entry option).

• AMOE must be free, given equal chance at winning and clearly referenced in the rules and marketing.


What is Chance?• Winner(s) selected randomly; no control by participants over the

outcome.• Eliminate chance by choosing a winner based on SKILL:

– Must be a bona fide skill (i.e. guessing the number of jellybeans in a jar is NOT a skill);

– Questions cannot be too hard or easy;– Ties must be broken on basis of skill and not random selection;– Judging criteria must be objective and clearly disclosed in the Official

Rules;– Judges must be qualified; and– All entrants must compete on equal playing field.


What is a Prize?• Anything of value provided to winners, including:– Event tickets– Consumer goods– Promotional merchandise– Trip– Experience


Prize Restrictions• California: no live animals• Hawaii: no liquor prizes in public places• Maine: no live animals and no liquor prizes if contest is held

by liquor license holder• Massachusetts: no live animals• Minnesota: no chicks, goslings, ducklings or rabbits that have

been artificially colored• Nebraska: no real estate, raffle ticket or live animal except for

beef or dairy cattle, horse, bison, sheep or pig• Pennsylvania: no live animals, except fish


Official Rules• Every sweepstakes or contest needs official rules, regardless

of whether entry is via the Internet, on-site, text, social media or any other form.

• Rules are the terms of the contract between the promotion sponsor and the entrant.

• Rules must be clearly disclosed and made accessible prior to promotion entry.

• Link to complete Official Rules and abbreviated rules must be available prior to entry.

• No changes to the rules allowed after promotion begins.


Official Rules (Cont’d)Official Rules should include:•A provision that includes the following: No purchase necessary to enter or win. A purchase will not increase chances of winning. Void where prohibited.•Clear entry instructions (list all methods of entry, deadlines, and limits on entries).•Ownership of entries and use of images and winner name/profile.•Prize description, including approximate retail value (ARV) of each prize element and total prize ARV.•Any limitations or restrictions on the prize.•Eligibility restrictions and qualifications.•Promotion start and end dates/times.


Official Rules (Cont’d)Official Rules should include (cont’d):•Method of winner selection.•Name and address of promotion sponsor.•Website for privacy policy applicable to the entries.•Odds of winning.•Whether unclaimed prizes will be awarded and how alternates will be selected.•Disclaimers as to technical failures and prize liability—if sponsor determines that the promotion is corrupted, then sponsor can select winner from eligible entries already received and can terminate the promotion.


Registration and Bonding• New York: promotions with total prizing exceeding $5,000 require registration and

bonding with the New York Secretary of State 30 days in advance of promotion launch.

• Florida: promotions with total prizing exceeding $5,000 require registration and bonding with FL Dept. of Agriculture & Consumer Services 7 days in advance of promotion launch.

• Rhode Island: promotions with total prizing exceeding $500 require registration with Office of the Secretary of State (no bond required).

• Arizona: An operator of an “intellectual contest or event” which requires purchase to enter must be registered with the State Attorney General’s Office.

• To avoid registration and bonding requirements, you can exclude certain states from promotion eligibility or keep the prize value under $500 or $5,000—you can also structure a promotion as a series of consecutive sweepstakes with separate entry periods and prize pools.


After the Promotion is over…• Winner’s release or affidavit must be signed (some need

notary).• If there is a guest portion of the prize, then the guest must

also sign a guest release and/or affidavit.• Maintain a list of winners.• Send winners list to states requiring these lists and have

bonds (if any) released.• Send Form 1099 to winner if total prize is valued at $600 or

more.


Content Considerations

• Music Licenses and Performance Rights• Third Party Trademarks• Right of Publicity Laws• UGC• Who owns the content?


User-Generated Content (UGC)

• Will you moderate? Take down? What rights does your company have?• A typical UGC-based promotion allows entrants to upload a photo, video, text or

music (which may or may not incorporate sponsor’s product) for a chance to win a prize.

• Official Rules should note:–Submission requirements (i.e. length/format)–Reps, warranties and indemnification–Right to use name, likeness and bio info–Rights in submissions (ownership)–Prohibition on submissions copyrighted or trademarked by a third party (3rd party IP)–Reserve right to remove or reject content for any reason


Charity and Partnerships


Charity Involvement/Cause Marketing

• When (1) the offer for sale of a product or service is (2) based on the representation that the purchase will benefit a charity, a Commercial Co-Venture (CCV) relationship is formed.

• CCV Basic requirements:–Written contract with the charitable organization;–Per-unit disclosure of donation amount;–Disclosure of beneficiary; and–Registration and bonding in certain states.

• Must follow Attorney General guidelines for CCV.


Thank you for attending today!

Cisca Brouwer

Senior Counsel

NBCUniversal Digital Entertainment

[email protected]


the legal side of social media marketing - cisca brouwer

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