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Why Facebook’s Updated Promotions Guidelines Don’t Make It Easier To Run Contests/Sweepstakes

On August 27, 2013, Facebook updated its Promotions guidelines, announcing that it had made it “easier to administer promotions on Facebook.

But it hasn’t, really.

Social Media Promotions

Social media promotions (contests or sweepstakes) must comply with both the law and social media site terms. A promotion’s Official Rules contain both:

  • Law:    State contest or sweepstakes laws (eligibility and residency requirements, limitations of liability, etc.), other laws such as intellectual property (use or trademarks or copyrighted material in a promotion), the right of publicity, advertising, etc.
  •  Site Terms:     In the case of Facebook, the requirement of a complete release of Facebook by each entrant or participant; acknowledgement that the promotion is no way sponsored, endorsed, or administered by, or associated with Facebook; etc.

Facebook Promotions Prior to August 27

Prior to August 27th, Facebook Promotions guidelines required, among other things:

  • Official Rules;
  • A complete release of Facebook by each entrant or participant;
  • Acknowledgement that the promotion is in no way sponsored, endorsed, or administered by, or associated with, Facebook; and
  • A third-party application to administer the promotion.

In the past, to comply with Facebook Promotions guidelines, administrators used a third-party application, such as Woobox or Wildfire, to run a contest or sweepstakes on Facebook. The third-party application also contained the Official Rules, provided by the promotion administrator’s advertising attorney, which contained legal requirements and Facebook Promotions guidelines. Participants and entrants would then agree to these Official Rules within the third-party application, via a legally enforceable clickwrap or clickthrough agreement, just prior to entering the contest or sweepstakes.

If a contest or sweepstakes happened to violate the law, an organization faced potential legal liability. If a contest or sweepstakes violated Facebook Promotions guidelines, Facebook could either suspend or delete the page.

Consider Velvet Burger.

In 2013, the company Velvet Burger bought a lottery ticket and posted on its Facebook page that it would divide its winnings with anyone who shared the post. Shortly after the post, Facebook deleted Velvet Burger’s page because the promotion violated Facebook Promotions guidelines, leaving Velvet Burger’s Facebook community of almost 10,000 users in the dark.

Facebook Promotions On and After August 27

Under the updated Promotions guidelines, Facebook no longer requires a third-party application to administer a promotion, but importantly, the Promotions guidelines still require:

  • Official Rules;
  • A complete release of Facebook by each entrant or participant; and
  • Acknowledgement that the promotion is in no way sponsored, endorsed, or administered by, or associated with, Facebook.

Without a third-party application, the options now for including Official Rules containing legal provisions and the above Facebook site terms are: 1) Include the entire Official Rules, a lengthy legal document, in the Facebook post announcing the contest or sweepstakes; or 2) Link the Official Rules to an external site, which requires an organization to confirm manually whether every entrant has agreed to the Official Rules, and given the extra steps for participants, may prevent Facebook users from entering the promotion.

Both lack what third-party applications provide: an easy way to include Official Rules; legally enforceable clickthrough agreements, randomness required by sweepstakes, the ability to brand a promotion, and other critical legal and design components of contests and sweepstakes.

Further, the Promotions guidelines still prohibit other promotions such as requiring a Facebook user to share or like a post on their or a friend’s personal page.

Consider Velvet Burger once again – the company that bought a lottery ticket, posted on its Facebook page that it would divide its winnings with anyone who shared the post, and Facebook deleted its page as a result. This and numerous other promotions I vet legally remain completely unchanged under the new guidelines.

So, how has Facebook’s updated Promotions guidelines made it “easier to administer promotions?” I suspect Velvet Burger and many others ultimately will find that, besides added confusion and a potential for increased legal liability, not much.

Social Media & Public Records (and a Killer Startup Idea).

A dozen or so people have asked me about social media and public records.  And I’ve told them the issue’s past whether social media posts constitute public records, and onto how federal, state, and local governments are going to archive and manage the posts for purposes of the Freedom of Information Act (FOIA) and state public records laws.

Social Media Posts As Public Records Is Hot.

I mean, look what’s trending now.  As part of the Office of Management and Budget (OMB)’s Open Government Directive (which includes social media use), OBM sent a memo in December 2009 to the heads of the executive departments and agencies, instructing them to provide a link to a website that shows how they’re meeting the records management requirements.

North Carolina’s Best Practices for Social Media Usage explicitly states that “[l]ike e-mail, communication via agency-related social networking Web sites is a public record . . . [and] agencies must assume responsibility for public records and adhere to the schedule of collection for social networking Web site set by the North Carolina State Archives.”

Similarly, the Idaho State Department of Education’s Social Media and Blogging Policy, provides that all internet postings are subject to the State of Idaho public records law, and all employees must follow Idaho’s administrative procedures for responding to requests for examination or copying.  That one, I wrote.

The City of Seattle, in its Social Media Use Policy, likewise makes clear that “City of Seattle social media sites are subject to State of Washington public records laws . . . [and] Washington state law and relevant City of Seattle records retention schedules apply to social media formats and social media content.”  The State of Washington even went as far as to preempt the coming blitz of public records requests for social media posts by amending its Public Records Act to allow local governments to respond to records request by providing individuals with a link to where the documents are posted on the agency’s website.

But these governmental entities are ahead of the game.  The National Archives and Records Administration is still exploring records management implications of implementing social media tools, and state and local governments continue to ask how to archive social media posts.

And they should.  The Federal Rules of Civil Procedure provide for discovery of all electronically stored information or other data compilations stored in any medium, and most states, including my home State of Idaho, require record retention at both the county and municipal level.

Further, the Idaho Supreme Court has held that e-mail correspondence, even though of a personal nature, may constitute a public record if it relates to the conduct or administration of public business and provides an explanation for a public official’s action.  If social media posts are treated the same as electronic correspondence for purposes of public records requests, which they typically are, you can add government employee posts on personal social networking accounts related to official business to the mix. And that’s kind of big.

You Know What’s Also Hot?  Archiving Standardization.

The savviest of governmental entities are testing out the best in the game for archiving public records, and thus far, they’re not backing a single outfit.  Rather, consensus is that various third-party tools and plug-ins are golden for now. Check out Microsoft Outlook Twinbox (which allows a person to send a tweet from Outlook and then archive it in a folder), ArchiveFacebookTweetTakeSocialSafeBackUpMyTweets.comBackupify, and others to get an idea what’s out there.  What are you using?  Startup hacks, what would you have them use?