Tag Archives: Promotions

7 Legal Issues For Pokemon Go: Gotta Read Them All!

pogologoPokemon Go has taken the planet by storm.  In its firstweek it surpassed Twitter for daily active users, it became the top grossing US iPhone app in just 13 hours (despite being a free to play game with optional purchases), and mobile users are spending more time on Pokemon Go than on Facebook.  Pokemon Go has become the most popular Android app for daily users, surpassing the previous leaders by nearly 300%.  And it did that in a span of days.

Not only have you likely heard of Pokemon Go, you’re also statistically likely to have played it if you have a mobile phone.  If you haven’t played there are plenty of guides out there (here’s a video I thought was a good intro) or you can just go to any public place where you see people looking at their phones and ask them.

Given the meteoric rise of Pokemon Go, it is only a matter of time before the game crosses over into doing promotions and marketing activity.  There are already reports that the game includes code to run a test promotion with McDonald’s in at least one Asian country.  With this many people and brands interested in the hot new game (and eventual platform), my friend and fellow social media lawyer Jim Dudukovich and I wanted to present the seven legal issues you should know around the game for now.  This isn’t specific legal advice, just us thinking about the intersection of new technology and the law.  And an excuse to play.

1. Pokemon Go isn’t a platform…yet

While Pokemon Go provides an intriguing mix of real world and virtual world entertainment, the interaction between players is currently very limited.  Players do not see other players while wandering their virtual map overlays on real world maps.  The only interaction with other players is in lures dropped by players and battling/training at Pokemon Gyms.

The

The swirling purple flowers are caused by lures dropped by players–you can see the lures dropped by other players but cannot see the players themselves.

This is all certain to change in the future.  The Pokemon Go terms discuss the ability to trade items with other players even though that functionality does not yet exist.  Trading items with other players will possibly come with the ability to communicate with them as well, or perhaps there will be the ability to chat with other members of your team (one of three alliances you join upon reaching level 5 in the game).

While Pokemon Go has currently inspired people to get together and communicate, it is neither required for the game nor supported by it yet.  So the game is not a social media platform…yet.  But given the rise of players and pop culture awareness, it is almost a certainty that the game will either evolve to become a platform or players will start to congregate around another platform in order to communicate.  This places the app more in the realm of just a game for now, but as it expands functionality and brands start to get involved there will be a number of common social media platform legal issues that emerge.  So stay tuned.  And level up in the meantime.

2. Sponsored content is coming

Where there’s a game, there’s an opportunity for brands to get involved (with varying levels of legality).  The model for Pokemon Go has yet to mature (or at least to be announced publicly), but the ways brands can get involved will likely include not only some “conventional” methods, but also some integrations that are possible only with augmented reality.

Going forward, we are likely to see “official” partnerships whereby businesses can become sponsored locations or some other formally identified type of destination with yet-to-be-determined perks (and costs).  In order to distinguish the haves from the have-nots, the benefits of paying for participation will need to really break through the clutter of the free-riders in order for businesses to invest (see #3 below).  One would assume that part of that bundle of rights would be co-promotional rights, whereby those partners can produce advertising materials featuring elements that only official partners can use.

And with augmented reality comes the ability for brands to buy virtual advertising space; clearly Niantic – should it opt to pursue this revenue stream – will need to be thoughtful so as not to chase away users by overly commercializing the user experience.  When users start having to walk around a virtual billboard in order to capture a Jigglypuff, they might begin to revolt.

3. But businesses are already cashing in

As things currently stand, some businesses are near Pokestops, which attract players to their locations to load up on Pokeballs and other virtual supplies and (hopefully) lead those players to buy something from the brick-and-mortar business; at the very least it breeds familiarity and exposure.  We’ve also seen businesses buying and dropping lures to attract players, as well as putting up social posts that play off of the game’s name, notoriety, characters, and imagery, including using #PokemonGo.  There are even online articles telling business how to take advantage of this claim, like this rather creative one from Shift Communications.

Some examples:

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

This Brookstone in the Houston Galleria invites players in with a discount.

This Brookstone in the Houston Galleria invites players in with a discount.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go, although this has not been verified.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

From a legal standpoint this raises some interesting questions.  For instance, if businesses are leveraging the game to attract consumers, would Niantic not have a potential claim for false association/false endorsement?  One would think so, but since it’s already been over a week and we haven’t seen any claims, uhm, wait – how long until some form of laches or abandonment defense would attach?  But seriously – we don’t know if Niantic has any inclination to attempt to aggressively enforce its trademark rights – it’s making plenty of money from in-app purchases that are attributable to these uses and will likely make plenty more once it launches official branding opportunities.  In light of that, so long as the participation by unaffiliated businesses doesn’t interfere with Niantic’s business opportunities to sell official partnerships, and so long as those unofficial users don’t hold themselves out as official sponsors or otherwise engage in behavior that could dilute or undermine Niantic’s trademark rights, we probably won’t see widespread aggressive policing.

4. Does Pokemon Go create attractive nuisances or encourage trespass?

Pokemon Go is not the first geolocation game to exist, but it’s the first to breakout in such a significant way.  Having millions of people, many of them under the age of 18, wander around trying to collect virtual property brings some real property issues up in unique ways.  These next three topics are just a few of those interesting overlaps between the real and virtual world.

Adults know not to trespass on private property (or the law infers they do) but children are typically given a free pass when it comes to attractive nuisance law.  This is the body of law that covers situations when a child illegally enters private property and is injured while on that property.  While originally laws in this space required the nuisance itself (piles of lumber, swimming pools, trampolines) to cause the injury, the law has also broadened the landowner’s culpability to include conditions that the owner could foresee would cause injury.  Imagine a very visible giant pile of lumber that a child would want to climb and a ravine covered by grass on the way there–that’s covered.

The Pokemon Go terms do imagine this potential risk area.  There’s an entire Safe Play section which discusses avoiding physical harm while playing and obeying all laws including trespassing.  That doesn’t mean much to the 13 year old who won’t read these terms (and 99% of all other players), but it provides the developer with some protection around players being injured.  The terms do not shield property owners, who now may face a slightly greater risk of some injury on their property by players looking for Pokemon.  The game is designed to be played by walking around and the game informs players when Pokemon are nearby but not where they are–the only way to track them down is to try walking in different directions and seeing if they are closer to the Pokemon as indicated by the number of footprints near the Pokemon’s picture or outline.

Since Pokemon are placed randomly, it is possible the game could inadvertently provide clues that lead children onto dangerous property or near a dangerous condition.  These clues are left vague on purpose, to make it more of an exploration game, but that also can lead children onto private or dangerous property.  When the Pokemon finally appears you can click on its location in the map, but getting it to appear can be random.  The game also gives you visual clues of where Pokemon might be with rustling leaves–players chasing those leaves may not realize where they are going.

The game itself doesn’t intend this risky behavior, nor can it be prevented currently.  It’s also debatable if a landowner would be liable for a harmful condition when they did not create the attraction that drew a child onto the property in the first place.  If a landowner is already in a densely populated area and is concerned about children being injured, they probably have already taken action (on the condition itself, preventing access, posting signs).  If they are in a remote area it’s hard to imagine local Pokemon Go players entering their property as opposed to visiting areas of attraction (PokeStops which provide virtual items to players).  But landowners in the space between may want to be aware of this risk and if they were debating taking action in the past, perhaps now is a time to do so.

While it may be difficult to pin responsibility on Pokemon Go for an attractive nuisance or trespass, it certainly creates an environment where those actions may be more likely to take place.  So both players and landowners may want to consider the risks when playing.

5. Pokemon Go and the idea of appropriate play

Outside of the physical risks that players may be subjected to while hunting Pokemon, there is also a growing concern of whether playing the game is appropriate in certain locations.  Within the first week of the game’s launch a story circulated about the Holocaust Museum in Washington, DC asking people not to play the game in the museum.  Arlington National Cemetery also asked players to refrain from using the site as a playable location.  The sites said they would reach out to the game creator to see about excluding the sites from the game but so far there does not appear to be an easy way for property owners to exclude their land from the game.

The idea of whether a location is appropriate or not is not limited to large national sites, though.  Because Pokemon Go is based on work done for a previous geolocation game, Ingress, much of the previous game’s data are used for this new iteration.  And because Ingress was based on a storyline involving spiritual energy, many of the featured locations in the game can have a spiritual element such as churches or monuments.  Or take, for example, this PokeStop in Austin, Texas:

faniapokestop

This happens to be the headstone for my wife’s great-grandmother Fania Kruger–a woman who immigrated to Texas when she was 15 and later became a well-known poet.  Is her headstone being a PokeStop a good or bad thing?  Is it a celebration of her life to have players intentionally seek out her final resting place and perhaps learn a bit of who she was or learn her name?  Or is it a desecration of a place of remembrance for her and the other families whose relatives are nearby?  While this may not present a direct legal issue, the reaction to a real world location with emotional interest becoming a game location can cause strong reactions.  And those reactions may turn into legal issues as cemeteries, museums, or other public spaces must now develop a position on Pokemon.

6. Are Pokemon Go players loitering?

Laws vary on the subject, but generally speaking most jurisdictions have laws that allow authorities to prevent people from hanging around with no apparent purpose.  Typically these laws were used to prevent gang activity or break up groups that might lead to trouble.  With small or large groups suddenly appearing in public places, wandering around while staring at their phones, authorities might be curious or concerned.  Within the first few days of the game being launched, a story appeared on Imgur of a white man searching for Pokemon in a park late at night only to encounter two fellow players, black men, and while the three of them talked the police were called about a suspected drug deal.  The story ended happily enough, with the policeman downloading the game and playing, but under scrutiny the original poster deleted the story.

It is true that Pokemon Go is drawing out populations that were previously playing games indoors.  While many people have long bemoaned the lack of America’s youth playing outdoors, society is also shocked and confused when exactly that happens.  While businesses seem to be getting in on the action, some even advertising if their stores are PokeStops or Pokemon Gyms (areas where Pokemon are trained and players battle for control of the location), some other locations may be less open to random strangers driving up or wandering around.  And authorities may be suspicious of large groups gathering at night.  Is it a gang fight or a Pokemon Go meet-up?

The actual definition of loitering may differ by jurisdiction, but it is generally defined as remaining in one place without apparent purpose.  Whether playing Pokemon Go provides that apparent purpose or not is debatable and may be up to the discretion of police officers depending on time and location.  Shopping malls or other private property that have posted No Loitering signs are possible more sensitive to this kind of activity, so players may want to consider the area before conducting extensive searches or meeting up with other players.

7. Are Pokemon Go players targets for criminals?

In the wake of the game’s popularity came another rash of articles suggesting that players were at risk of being targeted by criminals.  There was a report in St Louis of some teens who robbed players, possibly drawing them to their location by dropping a lure (virtual items which other players can see and increase your chances of finding Pokemon).  It’s hard to imagine this is an actual spike in crime though–or if so it is by some of the worst criminals imaginable.  Targeting Pokemon Go players seems far less lucrative than, say, staking out an ATM where people withdraw money.  On the flip side, using a remote PokeStop may yield less rewards but have less chance of getting caught.  Unless you’re in St Louis.

There’s also one story that made the rounds of a player who was stabbed while collecting Pokemon but elected not to go to the hospital so he could keep playing.  You can read the full account here but I thought the more interesting (and usually ignored) part of the story was how he was out at 1 am, saw another man wandering around, and immediately asked him if he was playing Pokemon.  This apparently triggered the man to attack the player with a knife.  So maybe the lesson here is to not wander around after midnight playing Pokemon, or not to assume some other person stumbling around in the dark is doing the same.  It may also be a lesson to the developers that hopefully they won’t create specific Pokemon that can only be found in urban centers, particularly near bars, in early morning hours.

More to come

Pokemon Go has certainly taken the country and world by storm but these are the very early days of the game.  Will it fizzle in the upcoming months, or will it continue to draw a healthy crowd and new functionality as time goes on?  We’ll keep our eyes peeled for any nearby rare Pokemon new legal issues around this game and let you know.

 

 

 

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Filed under Consumer Protection, Copyright, Fair Use, Identity, Kids, Laws, Pokemon Go, Privacy, Social Gaming, Social Platforms, Social Tracking, Technology, Terms and Conditions

Top 10 Social Media Legal Concerns For 2014 (Plus A Bonus!)

2014 legal risks include the very real possibility that you drop a crystal ball on your foot. This will hurt.

I’ve been privileged enough to be connected with a variety of brilliant, articulate social media attorneys around the country.  Recently one of them asked the group for their top social media legal concerns (not necessarily those of their respective employers) and in great blogging tradition I thought “I can totally steal that and make a blog post out of it!”  But, being all lawyerly, I asked for their permission first.  And then I turned it into a list because the moment you put a number on something the lizard part of your brain takes control of your clicking finger and you cannot resist.  You know it’s true.

All links are provided by me to help provide some context or background or additional reading.  But I didn’t make any links a numbered list because then you’ll never come back.

Without further obligatory filler text, here are the top 2014 social media legal concerns.  Read the whole thing and you’ll get a special bonus at the end.  It’s like the extra scene at the end of a Marvel movie except there’s no Nick Fury.  Probably.

1. Use of Other’s Content

Jim Dudukovich, Coca-Cola (and proud Vespa owner): The recent $1.2MM jury verdict in favor of Daniel Morel regarding the use by Getty and Agence France-Presse of photographs Mr. Morel had posted to Twitter regarding the Haiti earthquake could be a seminal case regarding the danger of relying on a platform’s terms of service to re-use others’ content; the fact that the media was held liable certainly doesn’t bode well for marketers, who are not entitled to as great a license as the press.

Ryan Garcia, Dell: This is a big one because there are two areas where clients can get confused.  First, when content is marked “Public” by a platform that doesn’t mean the information is truly public.  At least not all the time.  Sometimes it means that, mostly it means the content can be freely shared within that platform.  Second, the convergence of social platforms such as Facebook purchasing Instagram leads some people to think that the content can be freely shared between platforms and that’s just not the case.  They are both teachable moments but you have to remove that misunderstanding quickly.

2. Changing Promotional Rules

Chris Irving, Publishers Clearing House: Keeping abreast of ever changing Facebook promotional rules and making sure Marketing understands the “relaxed rules” are not an invitation to do everything and anything.

Jim Dudukovich, Coca-Cola: Although this one goes in the opposite direction from Facebook’s, imposing greater restrictions on marketers’ ability to conduct promotions on the platform [Pinterest].

Ryan Garcia, Dell: It’s always important to keep up with the latest changes in platform promotion requirements.  Lucky for all my readers I have guides to Facebook’s latest changes (September 2013) and Pinterest’s latest changes (October 2013).

3. Disclosures for the Convergence of Social with Mobile

Brian Abamont, State Farm: How do companies go about ensuring compliance with all of the disclosure and notice expectations, not just in terms of actually including them but also the expectations as to how they are presented in a form factor that puts real estate at a premium and has more limited presentation capabilities (e.g. just in time notification and proximity of disclosures to content). How can this be addressed with little standardization across the mobile OS environments for these types of things?

Chris Irving, Publishers Clearing House: Helping internal clients interpret and understand scope of FTC ‘s updated Online Disclosure Guidelines (while at the same time trying to fully understand what they really mean myself!)

4. Privacy, Privacy, Privacy

Chris Irving, Publishers Clearing House: Working with cross sectional compliance teams on all things Privacy.  As our digital footprint continues to grow,  expanding efforts to insure that privacy is baked in at design and that best practices can keep pace with fast growth. Issues include online behavioral advertising, keeping privacy polices current,  keeping privacy highlights pages current, understanding changes to polices and what accompany disclosures are necessary . . . . .

Brian Abamont, State FarmI would also place a strong “seconded” support behind Chris’ point about privacy and add that the rules are changing at a rapid pace across not just federal/national levels but also various states and provinces across North America and the rest of the world.  Furthermore, in some cases, the rules have been created after an alleged offense and seemingly applied retroactively, at a minimum from a reputational standpoint.

Daniel S. Goldman, Mayo Clinic: Probably less a legal  issue (at present), though I think there will be increasing regulation over time.  I think the issue is the public’s increasing concern about the data that is being collected/monetized by social platforms and by commercial entities and what can be divined about them from that data.  This plays out across many spectrums.  The most obvious is the negative reaction to targeted/behavioral ads, but also reflects a concern about analytics that is done on data that is collected (e.g. the “Target Article”).  I think there is a growing public perception that there is a digital “permanent record” about all of us that companies are mining to sell them stuff.

5. Fraud Fighting

Chris Irving, Publishers Clearing House: Expanding efforts to fight scammers and fraudsters on the internet who would use our name to deceive. Efforts include enhanced consumer education, public private partnerships and supporting stronger criminal penalties in Jamaica where a majority of these scams are originating.

6. Increased Attention to “Commercial Creep” and Transparency

Jim Dudukovich, Coca-Cola: This manifests itself in a few ways, from the FTC’s workshop on native advertising and the search for answers as to what consumer expectations are and the scope of consumers’ ability to distinguish between editorial/creative content vs. sponsored content/branded integration, to the NY AG’s “Operation Clean Turf” (investigating and penalizing the practice of publishing fake reviews).  Not to mention the attention the NAD has placed on native advertising/transparency (eSalon and Mashable/Qualcomm).

7. Social Behavioral Advertising

Brian Abamont, State FarmTypically, [behavioral advertising] has applied to web based activities and were easily covered by privacy policy and “About our Ads” information pages.  As the level of information from social is much deeper than a typical web site visit and marketers looks to make more advanced use of that information, how do businesses present proper consent/disclosures in the social platforms?

8. Reputational Public Relations and Marketing on Social Media

Jim Dudukovich, Coca-Cola: We’ve seen more and more instances in which the speed of social media marketing has trumped judgment, and major brands, either directly or through agencies, and sometimes even accidentally, have pushed out messaging that they later regretted (and perhaps wouldn’t have published had they engaged in a more rigorous internal review process).

Jessica Fredrickson, Walmart:  Blurred lines between marketing and reputational PR. Our clients are increasingly using reputational “advertising” to promote our good works (#RealWalmart). Whether these messages translate into sales isn’t clear and how these messages should be managed through a review process and with appropriate disclaimers is not consistent. 

9. Changes to TCPA Express Written Consent Rules

Chris Irving, Publishers Clearing House: Providing internal guidance to clients on the changing TCPA consent requirements applicable to text messaging campaigns as well as the necessary vetting for third party ads appearing on our sites where there is phone collection.

10. Crowdfunding

Ryan Garcia, Dell: The JOBS Act changes continue to come in and we have a market where many more people are comfortable with Kickstarter and other crowdfunding platforms.  The possibility of actual equity investment for the masses, as opposed to paying for items that help fund a project, has huge positive and negative ramifications.  People getting upset over late deliveries for a Kickstarter project are one thing–thousands of equity investors being upset over the direction of a brand new company is another altogether. Here’s a longer post on the subject from Perkins Coie.

And here’s your bonus as promised in the headline (and at no extra charge to you!).  Here’s a list of the top social media legal issues as presented by Mark Bisard (here’s his Twitter because he’s social!), social media and general digital guru for American Express.  These are all the details he provided or else he could have been incorporated into the main list, but instead it’s a bonus list for you. And there’s 16 things here, which makes it approximately 60% longer than the list above!  Enjoy and happy holidays!

  • Year of the Hashtag
  • Selfie is word of the year (see reputational risk parallels with Obama photo)
  • Internet of Things  (TRENDnet and FTC workshop)
  • Virtual Currencies (Largely BitCoin but also push to have VC like Farmville regulated like other FIs)
  • Mobile-Social Convergence results in Net Domination (or staggering blow in battle between search and social)
  • Real Time Marketing (Oreo-SuperBowl and West Jet type marketing, Multi Screen viewing consumption trends, internal agile and lean ux organizational changes)
  • Evolution of Cause Based Marketing to Issue Based Marketing (I made this up, but think Haiti relief on over to the surge of woman’s issue ads like Pantene, Goldblox, and  etc)
  • Data Security (spooky Aaron’s rental case, Blackberry’s death means more BYOD, President’s Exec Order, zip code cases, Hacks on big social platforms, Living Social’s 50 million person breach, the largest financial data breach in history (160 million credit card numbers stolen, but damages still hard to prove for consumers)
  • Rise of Snapchat and rejection of FB offer (new kid in town?)
  • Reed Hastings – Netflix- SEC response
  • Platform, rules and feature changes (FB, Pinterest – FB buys Instagram, Yahoo buys Tumblr, Google buysWaze – iOS7, new gTLDs and wearables – offers and gaming platforms like Groupon and Farmville struggle)
  • Regulators do their best to catch up and evolve (FTC, FFIEC, SEC, TCPA, California, State Password Protection laws, and even P-1A Visa issues for professional gamers signal evolution)
  • Transparency is clear trend (Operation Clean Turf, Native Advertising workshop, FTC’s renewed interest in black hat search practices, FTC action against spammers
  • OPP – “Public” – AFP & Getty case, GoldiBlox v The Beastie Boys saga (we were right—there’s a difference between publicly “accessible” and “publicly available for any damn thing I want” – shocker I know)
  • Big Surveillance – Big Data (big news, little in the way of change – Big data becoming legit biz practice but still fighting rep battle, Tech Titans letter to President is interesting, Path case and use of ECPA’s Wiretap Act and Store Comms Act to attack Google and others also interesting)
  • The Wallet Wars I think are the biggest news of the year.  Huge array of players/participants, consumer options.  Ready to burst.  Regulators are weighing in.  Bigger than VHS vs. Beta.  Hopefully beta wins this time.

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Filed under Commercial Activity, Consumer Protection, Copyright, Crowdfunding, Facebook, FTC Endorsement Guidelines, Google, Identity, Instagram, Laws, Pinterest, Social Content, Social Marketing, Social Media and the Law, Social Media Lawyers, Social Media Risks, Social Platforms, Social Tracking, Terms and Conditions, Twitter

Practical Guide To Facebook’s Promotion Changes

Now 100% Permissible!

Facebook made significant changes to their Facebook Pages Terms a few weeks ago that dramatically impact the kinds of promotions allowed on the platform. I briefly discussed these changes in The Great Facebook Legalization post, and although Facebook provided a blog post about the changes and a nice two-page downloadable guide to the changes, I know many people who were still confused.  I may or may not have been one of them.  But last week I had the privilege of chairing the Digital Advertising Compliance: Sweepstakes, Social Media and Promotions conference in New York City.  One of our speakers was an attorney from the Facebook policy team that did a great job explaining the changes.  I thought it would be worth describing those changes in a bit more detail based on the materials she presented.

To keep things simple, I’ll use the term promotions for both contests and sweepstakes.  If you don’t know the difference between the two then you need to consult with your marketing attorney.  Truth be told, any time you’re running a promotion it’s a good idea to consult with your marketing attorney or any reference materials a marketing attorney may have provided to you.

What Hasn’t Changed

First, it’s important to note some big things haven’t changed.  Chief among them–anything technical.  The new rules do not implement any technological changes, it is simply Facebook’s policies that are allowing these activities to take place.  Brands may have done some of these activities before (such as “Click Like to win!” sweepstakes) and if Facebook found out the promotion was shut down.  Now, Facebook won’t shut them down.  So it’s important to realize this is just a change in rules.  And rules can always change, so you should always see what the current rules are whenever you plan a promotion on Facebook or any other platform.

Going along with the notion that nothing technical has changed, another big element to keep in mind is that Pages run by brands still cannot send private messages to individuals.  So even though we are now entering a time when a promotion could be run on Facebook without an app and just on the page, there is no new functionality to notify a winner.  If that matters to you (and it should) then you’ll need to consider how to notify the winner when you can’t message them (like if you want to verify qualifications prior to announcing them the winner).

The Big Changes

Prior to these policy changes the only way to run a promotion was to use an application.  Unless you had the resources to write the code and provide some snazzy images yourself that likely meant you needed a third party to develop your app.  Now that restriction has been limited and the following items may be used in administering a promotion:

  1. Like to enter.  Post a status update or photo on your page and your fans can simply click the Like button to be entered into a drawing for a chance to win.  It will still fall to you to gather all the entries and randomly select one to win, but the mechanic itself is now permitted.
  2. Comment to enter.  Similar to clicking Like, you can also have fans provide a comment (funny caption, short statement, answer to a question, favorite Jesse Pinkman quote, etc.) as a way of entering a promotion.
  3. Post on page to enter.  You can also have your fans enter a promotion by posting to the brand’s page.  You would probably want to include some way of differentiating between promotion entries and regular postings to your page, possibly including a specific #hashtag for your promotion, but that’s up to you.
  4. Message a page to enter.  This one is a bit strange, since most brands tend to run promotions to generate public interest.  But in the event you’d like to run a secret promotion where the entries are unknown to anyone but the brand, then you are free to have fans message the page as a way of entering the promotion.
  5. Use Like as a voting mechanism.  You can allow fans to click Like on status updates or photos as a way of voting within a promotion.  How you present all the options and how you consider those votes (see Best Practices below) is up to you.

Still Not Allowed

Although those five items are now permitted by Facebook, there are still some activities that are not allowed in terms of promotions on Facebook.

  1. No entry via status updates with a #hashtag.  While you can have fans enter a promotion by posting something to the brand’s Page with a #hashtag, you cannot have a promotion where a fan enters by making a post on their own Timeline that includes the #hashtag.  Part of this restriction is technical–it would require you to explain that the update be public or else the brand can’t see it when it’s time to collect entries–and part of this restriction is to keep Timelines from looking like spam.  But if you want fans to enter by posting something, it has to be posted to the brand’s Page, not their Timeline.
  2. No entry via tagging people in a photo if they aren’t in the photo.  You cannot run a promotion, for example, that has a picture of a product and encourages fans to tag themselves and others on the photo for a chance to win it.  Tagging is reserved for photos that actually have the people in the photo.

Best Practices

These changes may take some time to be sucessfully integrated into your own marketing efforts so I suggest some best practices as you start to use them.  These are all in addition to the Best Practices suggested by Facebook in that downloadable guide I linked above.

  1. Think about notifying the winners.  As we mentioned before, brand Pages have no new way of communicating directly with promotion winners.  This was less of a problem when you ran a promotion through an app that could link to a privacy policy and collect an email address to notify winners.  Now many brands will be tempted to run a promotion entirely on Facebook but not think through how they will notify a winner.  This can be especially tricky if you have a potential winner but need to verify the entrant meets certain qualifications (over 18, can travel for the grand prize, etc.).  
  2. Don’t use Like as the only way to pick a winner.  Feel free to use voting (Like or otherwise) as one factor in picking a winner but not the only one.  It always ends poorly.  Always.  People will accuse others of cheating, of trading votes, of making up user accounts and so on.  Using the Like button is very convenient, but it also has the added downside of a fan deciding to Unlike later on which can distort results.
  3. Talk to an attorney.  The good news is that running promotions on Facebook is now easier.  The bad news is that running promotions on Facebook is now easier.  If you don’t know the legal risks you’re running up against then you need to talk to an attorney.  If you’re planning on running a contest for a $5,000 grand prize and self-administer, you need to talk to an attorney (and then a third party administrator).  If you’re planning on giving away a single prize of substantial value, you need to talk to an attorney (and if you’re asking “What’s substantial value?” then go talk to the attorney).  If you’re thinking you can run a global sweepstakes you really need to talk to an attorney.  Promotions carry legal risk even (especially!) when they’re simple to run.  This is not to say you’ll need to go through a lengthy legal review every time you want to run a promotion but you should know your limits and when others need to be looped in.  And you want to know the only way you can discover those limits?  That’s right, talk to an attorney!

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Filed under Commercial Activity, Consumer Protection, Facebook, Laws, Social Content, Social Gaming, Social Marketing, Social Platforms, Terms and Conditions

The Great Facebook Legalization

I know what you’re thinking. “Did I click 5 Likes or 6 to win those headphones?” We have all your data. So you gotta ask yourself one question: “Do I feel lucky?” Well, do ya, punk?

We’ve all done it. Browsing your Facebook feed a picture pops up. Maybe it’s from a page you like. Maybe a friend shared it with you. Maybe it was a promoted post. But you saw it and you did it.

You clicked Like so you could win something.

The prize didn’t matter. Bejeweled Blitz coins. A coupon for free sushi. Sunglasses. Cruise discounts. Books. Art. You probably didn’t win but you figured it was easy enough to enter.

What you didn’t realize was that you were helping commit a crime.

Okay, not a full on crime. Rather, you were assisting in the violation of Facebook’s terms and conditions. Don’t worry, you didn’t do anything wrong. The brand that ran the contest did though.

For many years Facebook required promotions (contest and sweepstakes) to be run through Facebook applications. You were not allowed to use Facebook functionality to enter. That means “Like to enter” or “Share to enter” or “Post a photo to enter” or “Comment to enter” were all violations of Facebook’s terms. If Facebook found out about them, they shut it down–but these contests/sweepstakes were too easy to set up and Facebook doesn’t have a dedicated police force to seek out bad promos.

And we’ve all entered them. Many may have been small companies running a contest. Sometimes they were scam pages looking to pull data from fans (when you Like a page that page can pull a lot of data from your profile). Every so often you would see a major brand run a contest that violated the terms as well. Pepsi did that a few times and they got pulled down. Scams typically got pulled eventually or if they received enough traffic. Small companies mostly got away with it.

I used to guess why Facebook had this restriction. Maybe because apps had better privacy controls than page Likes. Maybe it was some legacy tech issue. Doesn’t matter now that Facebook has changed the terms to allow these promotions to take place.

There is still one remaining restriction brands should know about. Facebook is concerned about promotions that lead to inaccurate photo tagging. For example, promotions that use a photo of a product and encourage users to tag themselves or others in the photo (even though those users are not in the photo) are not allowed.

Which means those sweepstakes will still go on and they’ll still be unauthorized. Perhaps Facebook will try and crack down on these more than the past, knowing that they have permitted more activities so they will try and crack down on the one category they are trying to restrict. Or perhaps enforcement will be unchanged and you’ll see plenty of these promotions populate your Facebook feed.

But now, before you enter, you’ll know that the sweepstakes is unauthorized. Whether that makes it more or less appealing to you is up to you. Facebook doesn’t judge.

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Filed under Facebook, Social Marketing, Social Measurement, Social Platforms, Terms and Conditions

Three Legal Risks In The Year Of The Hashtag

And if you want to read more about Hashtag gang signs…I mean hand signs, check out http://www.briansolis.com/2011/06/hashtag-this-the-culture-of-social-media-is/

2013 is the year of the hashtag.  Forget all of those silly predictions we made for this year in social media just a few short months ago, the number one trend for the next 9 months is the total domination of the hashmark.

Hashmarks (the actual symbol #) have been used on the internet for decades although it was never quite rescued from obscurity the way email brought the @ symbol back from the brink of death.  The most common use of hashmarks prior to social media was their use in IRC, an Internet chat technology, where hashmarks were used to label chat channels people could join.

But hashmarks became popular in the social media age thanks to Twitter users.  For a platform where everyone spoke to everyone else at the same time, users needed a way to differentiate between different topics and conversations.  The proposal to use hashmarks combined with a word or phrase to create a hashtag was first proposed by Chris Messina in August, 2007 but the concept really took hold a few months later when the hashtag #sandiegofire was used for updates on the massive fires that hit San Diego in October, 2007.  After that real fire, hastags caught virtual fire and spread across Twitter.

Fast forward to 2013 and not only has Twitter integrated the hashtag into their platform (many years ago they made all hashtags automatic search terms just by clicking on them) but other platforms have integrated the same function.  Google+ launched with it, Instagram uses hashtags, so does Pinterest and several others.  The biggest holdout is rumored to be caving as Facebook is reported to be adding hashtag functionality.

A fantastic analysis of social integration in this year’s Superbowl ads shows how hashtags have caught on amongst marketers as well.  Every kind of social integration in a television commercial (showing a link to a Facebook page, showing a link to a corporate website, or even use of niche technologies like Shazam’s audio tagging) were down except for the use of hashtags which were up a whopping 31%.  Why hashtags instead of more specific links?  Probably because hashtags are about conversation topics rather than platforms–if I’m a brand and I start using a specific hashtag I might see that topic pop up on Twitter, photos posted with the topic on Instagram, related links pinned to Pinterest with the hashtag, even longer posts about the topic placed on Google+.  Hashtags are platform-neutral, although some platforms make it easier than others to discover.

Commercial incorporation of the hashtag and social conversation has been a fascinating evolution to watch.  It started with traditional “Follow us @account” messages on commercials and TV shows.  Then it became “Tweet us and we’ll show it on the air!”  Then we saw several shows try to use their name as a hashtag to promote conversations while the show was on.  The latest move is to have several hashtags appear during the show or commercial, often around key moments.  The TV show Survivor will now display hashtags like #immunitychallenge rather than a more general #survivor topic.

However, with this evolution and broader hashtag use comes a few legal risks which brands should keep in mind.

Hashtag contests can go places you don’t want to go

Back when hashtags were largely a Twitter-only function, it was possible to run social media contests by asking people to post their entry using a hashtag.  Both the brand and the entrants largely understood that meant posting on Twitter only.  But now that hashtags are supported on so many platforms, brands must be careful about using more than just hashtags to denote the proper place for entries.  Google+, for example, has hashtag functionality but does not allow contests to take place on their platform.  So be clear about entry places beyond just hashtag.

Hashtags as consent probably still don’t work

I’ve seen some promotional efforts that ask users to post a comment or picture using some unique hashtag like #UareDbest2013WhatWhatHolla!  Then the picture or content or even user avatar associated with that post will be used by the brand on a web page, as a contest entry, or even as a printed ad.  Brands need to be especially careful about treating these hashtags as consent without some other kind of communication.  First, it’s unclear if the platform you are pulling the content from will allow that under their terms.  Second, while the hashtag may be so unique that it can only originate from someone who wants to participate in your event, it’s also possible one of their friends will see it and start using it or sharing it without knowing that was supposed to carry a consent to participate.

Now might be a good time to refresh your social media team about using hashtags wisely

It’s been a while since Kenneth Cole posted some stupid tweets about #Cairo.  Or since a small boutique posted some stupid tweets about #Aurora.   Or since Quantus airlines stupidly timed a promotion around #QuantusLuxury.  Or since Entemann’s stupidly tried to create a trend around #notguilty the day the Casey Anthony verdict was rendered.  Or since British furniture retailer Habitat stupidly tried to participate in every trending topic to sell some product.  The list goes on and on.  Now that hashtags are a hot topic, it may be time to get the right people in a room to go over the right way to use hastags so your brand doesn’t end up on this list.

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Filed under Commercial Activity, Facebook, Instagram, Pinterest, Social Content, Social Marketing, Social Platforms, Twitter

I Never Meta-Contest I Didn’t Like

Ernie Cline not only wrote an awesome book but he created an awesome contest to go along with it. That’s two kinds of awesome that most people haven’t done.

Last week I had to privilege to co-chair the ACI Social Media, Sweepstakes, and Promotions conference in New York City.  I chaired the event last year when it was focused more on social media and the business analytic technology behind it all, so it was interesting to see the shift in focus and the increased attendance (easily twice as big this year).

Conference chairs have some very important responsibilities during the conference: we introduce speakers and hold up time cards to keep them on schedule.  It’s grueling work.  We also are given a 15 minute time slot at the start of the day to make any introductory comments.  Last year, since I chaired both days, I spoke one day about my favorite parts of Dell’s social media team and the other day I made it a bit more personal talking about all the ways social media helped me out when my wife ended up getting an emergency appendectomy in New York City about 6 weeks prior to the conference.

This year, since I only chaired one day, I decided to do something a little different.  I chaired the first day which had more of a focus on sweepstakes and promotions, so I spoke about how the essence of those contests is something many people and companies have lost: the game.  Sure, a sweepstakes is nice if I think I can give something of little value (my email address and name) in exchange for a big prize.  But over time I realize that I get more email than I wanted and I never win, so they aren’t fun.  Instead, the best promotions are fun games by themselves and even if I win nothing I have a blast participating and tell all my friends about it.

To illustrate the point, I spoke about my favorite book from the last several years, Ready Player One.  If you haven’t read it, you should.  In the near future, everyone goes to school, works, and plays in a virtual reality system called OASIS.  The creator of the system died and left his entire fortune to whoever can complete three challenges in the game.  Since this programmer loved 80s pop culture, movies like WarGames and video games like Joust and music like Rush all weave themselves into the game.  So this is an entire book about a contest with billions at stake.

When the paperback version of the book came out, Ernie Cline, the author, decided to have his own contest.  He devised three challenges and whoever completed them first would win a replica of his car (he has a DeLorean made to look like the car from Back to the Future).  The first two stages were some relatively simple retro-style games (think Atari 2600, if you can remember that far back).  The third stage was a doozy–set a new world record in a video game.  Yikes.  But a few days later, the prize was won. Here’s Ernie’s blog post with a note on how the winner did it if you’re interested.

My message to the lawyers and marketers attending the conference was to of course learn all they could those two days to make sure their contests complied with legal restrictions and platform terms, but also to make their games fun.  And to inspire them, I held a contest of my own.  Before each speaker or panel I would give them a random word or phrase (like “Zombies” or “Swiss Cheese”) and anyone who incorporated the word/phrase into a comment or question could get 1 or 2 points (depending on how creative it was).  It was a game anyone could play, from speakers, to observers, and I’m happy to say every round we had at least one participant (and when people did work it into a comment or question there was usually a bit of applause from the crowd).

I also devised some contest Easter Eggs of my own.  Sadly, nobody found them.  The first was in my speaker bio where I said the first person to tell me “Bacon is awesome!” would earn 3 points.  The second was in this blog post.  I guess people were just too busy watching all the awesome speakers to go searching.

The prize for winning was, naturally, an autographed copy of Ready Player One which Ernie graciously signed for me prior to my trip.  And I even had a consolation prize for the best comment done in the session immediately after lunch (also known as the Food Coma Session at most conferences).  I hope both winners enjoy reading the book (they hadn’t read it yet, so I got to spread some more RPO joy) but more importantly I hope the attendees saw that it isn’t hard to make a fun game out of a contest.  Something that can be much more memorable than a simple sweepstakes that the vast majority of people will forget except when they get the annoying follow-up emails they signed up for to enter.

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Filed under Social Content, Social Gaming, Social Marketing