CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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When running promotional contests in Canada, compliance tends to focus on the Competition Act, Criminal Code, privacy and ensuring that mandatory short rules and complete terms accurately reflect the promotion (and give maximum latitude to a contest promoter to take steps in the event an issue or contingency arises). While all of this is of course important and in many cases fairly straightforward, one aspect that can be overlooked is social media site rules (and another reason one size does not fit all in terms of contest rules and disclosure).
Like everything else in our increasingly digital and virtual world, contest promoters increasingly want to increase the reach of a promotion beyond the more conventional retail and Internet website forums to have their promotions posted, Tweeted, liked, shared, linked, forwarded and favourited, among other things, on Twitter, Google+, Facebook and through other social media platforms.
Many social media sites, however, including Facebook, Twitter and Google+ have both general terms of use that can apply to contests and promotions and specific rules that apply to contests and other types of promotions. Working on several contests recently involving social media gave a bit of a refresher, and so I thought a short post here was in order. So here goes.
Facebook’s Statement of Rights and Responsibilities, Pages Terms and Promotions Guidelines include a number of rules to be considered when using Facebook to administer or communicate a contest. For instance, Facebook’s Statement of Rights and Responsibilities, the terms of use governing its relationship with users, requires users to: (i) follow its Promotions Guidelines and other applicable laws when publicizing or offering any “contest, giveaway, or sweepstakes” on Facebook; (ii) follow certain rules when collecting user information (not collect user information without consent, state that Facebook is not collecting the information and include a privacy policy stating what information is being collected and how it will be used); and (iii) agree to follow Facebook’s Pages Terms when creating or administering Facebook pages, which include rules relating, among other things, to the collection of data and consent and notice requirements.
Facebook’s Promotions Guidelines set out rules for using Facebook to communicate or administer contests. “Administer” is defined broadly as any element of a promotion, including collecting entries, conducting a drawing, judging entries or notifying winners. The definition of “communication” is equally broad and means promoting, advertising or referencing a promotion in any way on Facebook (e.g., ads, on Facebook pages or Wall posts).
Some of Facebook’s key promotions rules include: (i) requiring promotions to be administered within Apps on Facebook.com (on a Canvas Page or Page App); (ii) including certain information (e.g., a release of Facebook by entrants, acknowledgment that the promotion is not sponsored/endorsed/affiliated by/with Facebook); (iii) limiting Facebook-feature related conditions for registration or entry (limited to only liking a page, checking into a Facebook Place or connecting to an organizer’s app.); (iv) not using Facebook features/functionality to register or enter (e.g., not automatically register/enter participants that like a page); (v) not using Facebook features/functionality (e.g., Like buttons) as contest voting mechanisms; and (vi) not notifying contest winners through Facebook (e.g., through Facebook messages, chat, or profile posts).
Google+’s Contests and Promotions Policy includes rules to not directly run contests, sweepstakes and other types of promotions (e.g., daily deals, coupons, etc.) on Google+, run a promotion that conflicts with other Google terms (including its Privacy Policy and Google+ Pages Additional Terms of Service) and, like Facebook, also includes restrictions on using Google+ features or functionality as a required part of a contest or promotion. Google+ also includes a user release and indemnity relating to liabilities relating to the use of Google+ for a promotion, violating Google’s terms of use or third party rights (including intellectual property and privacy).
Twitter’s Guidelines for Contests on Twitter are perhaps the least intrusive for contest promoters. They provide, among other things, that the creation of multiple accounts by users to enter a contest multiple times should be discouraged (recommending a contest rule against creating multiple accounts or be disqualified), highlight that posting duplicate or near duplicate links violates Twitter’s rules (apparently aimed at Tweeting contests and similar spam-type competitions) and recommending against using hashtags unrelated to the promoter or promotion. Perhaps not surprisingly, given that there is little room for including contest rules in only 140 characters, Twitter’s Guidelines for Contests are largely aimed at reducing the likelihood of spam or deception.
All in all, while lawyers tend to focus on “black letter” law such as the Competition Act, Criminal Code, the law of contract, and the like when vetting contests, marketers and promoters tend to focus (as they should) on brand and reputation. In this regard, considering social media site terms is one important step to ensure that a contest or other promotion does not backfire by turning buzz into page takedowns, complaints or negative PR.
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KEY LEGAL TIPS FOR RUNNING
A PROMOTIONAL CONTEST IN CANADA
The following are some key legal tips for operating a successful and legal contest in Canada:
CRIMINAL CODE
Avoid the illegal lottery offences of the Criminal Code (e.g., include a bona fide “no purchase necessary” entry option and skill element, such as a time-limited, multiple-step mathematical question for potential winners as a condition of awarding prizes).
SHORT RULES (MINI RULES)
Include short rules / mini rules with all of the required Competition Act disclosure requirements for point-of-purchase materials (e.g., print and in-store marketing, social media and Internet sites, packaging and labeling, television and radio spots, etc.).
For more information, see: Canadian Contest Law Forms/Precedents.
LONG RULES (OFFICIAL RULES)
Ensure that precise long rules (i.e., the official contest rules) are included that reflect the details of the contest, anticipate potential contingencies (e.g., technical problems) and set out the terms of the contest as clearly as possible – for example, eligibility requirements, how to enter, prize descriptions, number and value of prizes, draws and award of prizes, odds of winning and indemnifying and releasing the contest sponsor and any co-sponsors or prize sponsors.
Contests are contracts, and so they should be as accurate, clear and precise as possible in the event issues arise.
For more information, see: Canadian Contest Law Forms/Precedents.
WINNER RELEASE FORMS
Consider using winner release forms for contest winners.
While not required by law in Canada, winner release forms are almost always used by contest sponsors to have winners confirm that they have complied with all contest rules and release the sponsor from legal liability. Signing and returning winner releases is also commonly included in contest rules as a condition of awarding a prize.
Winner release forms are particularly important for contests in which there may be higher risk (e.g., where the contest involves high value prizes or a trip prize).
For trip contests, sponsors are generally advised to use winner releases for both winners and any travel companions (and guardian releases for any minor companions).
For more information, see: Canadian Contest Law Forms/Precedents.
FALSE OR MISLEADING ADVERTISING
Ensure that advertising and marketing materials are not false or misleading (i.e., comply with the general civil and criminal misleading advertising sections of the Competition Act, under sections 74.01 and 52).
In this regard, contests in Canada must comply not only with stand-alone contest provisions of the Competition Act (under section 74.06) but also with the general misleading advertising sections of the Competition Act.
It is particularly important to ensure that the marketing materials also match the contest rules and that all material aspects of the contest (e.g., number and type of prizes, prize values, how to enter and win and any conditions/limitations) are accurately described in the short rules, long rules and marketing materials.
CANADIAN FEDERAL ANTI-SPAM LAW (CASL)
Comply with Canada’s federal anti-spam legislation (CASL).
CASL is often relevant when running contests in Canada, including if electronic distribution lists will be used to market the contest, the contest will include the collection of e-mails for marketing unrelated to administration of the contest, if entrants’ e-mail addresses will be shared with third parties (e.g., related entities or affiliate marketers) or entrants are either required or incentivized (e.g., through additional entries) to “share” the contest with friends or family.
Given the potentially severe penalties for violating CASL, which include AMPs of up to CDN $10 million, it is very important for contest sponsors to ensure that they comply with CASL for any electronic marketing related to promotional contests open to Canadians.
For more information about contests and CASL, see: Contests and CASL and CASL Compliance Errors.
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CASL Compliance Checklists and Precedents: For information about the CASL compliance checklists and precedents we offer, see: CASL Compliance Checklists and Precedents.
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INTELLECTUAL PROPERTY CONSENTS
Consider whether consents are needed (and if necessary obtained) to reproduce third-party intellectual property – for example, trade-marks, logos, etc. – or to transfer ownership in contest materials – for example, where contestants create original material as part of the contest.
Contest rules in Canada commonly include rights (e.g., a licence) for the sponsor to use information and content contributed by entrants and if entrants will be contributing original content (e.g., photographs, essays, etc.) it is also a good practice for sponsors to include guidelines relating to their rights to use (or reject) any entrant contributed content.
For more information, see: Guidelines for Consumer Generated Content Contests.
U.S. LEGAL ADVICE IF OPEN IN THE U.S.
Obtain U.S. legal advice if the contest will be open to U.S. residents or limit the contest to only Canadian residents.
SOCIAL MEDIA PLATFORM RULES
Comply with social media sites’ terms of use if using social media to promote or host a contest (e.g., Facebook’s Promotions Rules).
Also ensure that appropriate disclosures are made in all social media marketing (i.e., include short rules).
For more information, see: Contests and Social Media.
OTHER COMPETITION LAW
AND ADVERTISING LAW RULES
Consider whether other competition or advertising law rules may apply to a contest. For example, in addition to the stand-alone contest provision (section 74.06), the Competition Act also contains provisions governing deceptive prize notices, general misleading advertising (sections 52 and 74.01) and telemarketing that involves prizes.
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SERVICES AND CONTACT
We are a Toronto based Canadian competition law and advertising law firm who helps clients in Toronto, across Canada and the United States practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
Our Canadian advertising/marketing law services include advice in relation to anti-spam legislation (CASL), Competition Bureau complaints, the general misleading advertising provisions of the federal Competition Act, Internet, new media and social media advertising and marketing, promotional contests (sweepstakes) and sales and promotions. We also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
For more information about our services, see: services
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
