In the above-mentioned case, the business had launched twelve competitions on Facebook over a period of twelve months. Entrants were required to tag their friends in order to enter the competition. The Facebook posts might read as follows:
(…) to enter the competition, you are required to:
• like our post
• tag the person you want to share the prize with
• like our Facebook page
• follow our profile on Instagram
Ban on spam: Tagging requirement is unlawful
The Consumer Ombudsman found that such a competition violates the ban on spam set out in the Danish Marketing Practices Act, because the Facebook user being tagged receives a notification when he or she is tagged in the competition. The notification refers the tagged friend directly to the competition run by the business, and the Consumer Ombudsman therefore finds that the notification is sent on behalf of the busi-ness. Direct communication from businesses is considered to be spam, if the addressee has not consented to receiving the communication.
Consumer Ombudsman Christina Toftegaard Nielsen says:
“Under the Danish Marketing Practices Act, we all have the right to decide who we want to receive advertising from; therefore, a business is not permitted to send notifications on social media without obtaining the ad-dressee’s prior consent. Also, businesses are not permitted to request others to do so on their behalf. The fact that social media makes it easy for businesses to do so does not make it lawful.”
In conclusion, businesses are not permitted to require entrants to tag their friends when entering competi-tions on Facebook and other social media.
So what can a business do instead to promote a competition on social media? Is the business permitted to request entrants to like the post, for example? Or like its Facebook and Instagram pages? Or ‘check in’ with the business? And – instead of requesting entrants to tag their friends – is the business permitted to en-courage them to do so, or to ask entrants who they would like to share the prize with?
The Consumer Ombudsman has not specifically addressed these issues, and we will therefore have to con-sult the provisions of the Marketing Practices Act for answers.
It is lawful to encourage others to like a competition post
As a general rule, a business does not violate the anti-spam rules by requiring entrants to like its Facebook or Instagram pages or its competition post, the reason being that Facebook and Instagram do not system-atically send out notifications of page likes or post likes. Therefore, the entrants’ friends would not receive direct communications. The same applies if entrants are asked to ‘check in’ with the business.
Whether or not a business is permitted to encourage entrants to tag a person they would like to share the prize with, instead of requiring a tag, depends on the specific post. In principle, such wording would not conflict with the anti-spam rules, as the tag is not a condition for entering the competition.
A muddled picture
However, there is a very real risk that most entrants do not read the post closely and would then be in doubt as to whether they were required to tag a friend. Such doubt would “muddle” the competition rules and may cause entrants to tag their friends just to be on the safe side. In addition to potentially causing annoyance among the tagged friends, it may also attract the attention of the Consumer Ombudsman.
Until this issue has been finally settled in case law, we recommend that businesses clearly and unambigu-ously list the conditions for entering the competition and that they do not require entrants to tag their friends as a condition for entering the competition.
Likewise, if a business asks entrants who they would like to share the prize with, the business should also clearly state unequivocally that the answer is not a condition for entering the competition.
Remember Facebook’s and Instagram’s own rules
Facebook’s and Instagram’s own competition rules must also be observed. These rules stipulate, among other things, that it must be made clear that Facebook and Instagram are not, in any way, involved in the competition and that the competition is not sponsored, supported or managed by or associated with Facebook or Instagram.
At Patrade, we have several specialists in this field who are ready to advise you on the legal and practical aspects of running competitions on social media.
If this area interests you, you may also like the article about the use of photos on Facebook.