Keeping Your Social Media Contests Compliant

by Baker Donelson

Baker Donelson

Let's say that your marketing department plans to launch a product promotion through dedicated software applications (apps), the Internet, and/or social media, primarily accessed by the target audience on hand-held mobile devices. Your company has recently conducted similar promotions, with results it views as great success.

In the digital age, these types of promotions are a key method of effectively reaching your intended audience in a timely and cost-efficient manner. However, be aware that such promotions implicate a staggering number of laws and other limitations, some of which are mentioned below. Reliance on your standard promotion materials, drafted years (or even several months) ago, to administer such promotions, may be misinformed.

Technical Issues

An obvious limitation on product promotions conducted via the Internet, social media, or apps is the underlying technology itself. These promotions are subject to a host of potential claims by entrants (e.g., damage to an entrant's computer/mobile device from accessing the promotion online), an entrant's inability to enter the promotion due to malfunction of the sponsor's computer system/server, and lost, interrupted, or misdirected entries. Such promotions are also subject to tampering, including flooding the promotion with multiple entries or outright corruption of the promotion. Sponsors must continually update their hardware, software, cybersecurity and technical expertise, and standard promotion materials to prevent or limit these technical failures or appropriately deal with them when they do occur.

The Basics/State Law

As sponsors have rushed to advertise and conduct their product promotions via the Internet, social media, and apps, the basics of a legal promotion (generally governed by state law) have remained the same. A promotion (whatever a sponsor chooses to call it) cannot include all three classic elements of "gambling," (i.e., prize, chance, and consideration). "Sweepstakes" – which include the prize and chance elements – and "skill contests" or "contests" – which include the prize element and possibly the consideration element but not chance – are generally deemed legal promotions. "Lotteries" – which include all three elements – are not. However, these basics are constantly being reinterpreted and reevaluated in the contexts of new and continually-evolving technologies.


The precise definition of "consideration" varies from jurisdiction to jurisdiction but often centers on factors like (1) how easy or difficult it is to participate in the promotion and (2) whether an alternative method of entry (AMOE) (such as submitting an entry form via U.S. mail) is available. In the early days of Internet promotions, an entrant would need both a personal computer and a paid Internet connection, neither of which was inexpensive or widely accessible to the public. Fearing that these underlying requirements would constitute consideration, sponsors automatically included an AMOE in their sweepstakes. Over time, sponsors began to drop the AMOE due to the broader availability of public computers and free or low-cost Internet connections.

However, the rise in sponsor use of promotions focused on mobile devices and apps has revived the consideration specter. For example, does offering a promotion only through an app that must be downloaded to the participant's smartphone implicate consideration? What if the app is free? What if it isn't? What if the participant uses some of her paid data to enter the promotion? What if she uses a wifi/free connection instead of data? What if the entry process requires not only downloading an app but also completing a lengthy entry form via the app? What if the participant doesn't have to pay for the app but does have to input credit card information before submitting his promotion entry?


The specific requirements of a "contest" vary among jurisdictions, and the intricacies regarding whether a promotion includes any disqualifying element of chance are many. However, most agree that in a contest qualified judges select the winner based predominantly on his/her skill using criteria specified in the promotion's official rules. Contest questions or puzzles cannot have multiple possible answers. Spelling bees, cooking contests and math contests are usually deemed skill contests; guessing games are not. It is generally settled law that contest winners may be chosen based on the creativity and originality of their entries (e.g., essay contests, photo contests, or art contests).

To boost media-savvy audiences' participation and interest in their promotions, sponsors are increasingly turning to the public to select online "contest" winners. However, the use of a popular vote to select a winner not only promotes "vote farming" (soliciting votes using social media, email, and other means, without regard to the judging criteria) but also calls into question the promotion's status as a true contest. Arguably, a winner chosen in this manner is not selected by qualified judges or based on specified criteria or a skill. Further, allowing the public to choose a winner could lead to undesirable results for the sponsor (e.g., what if the winner's entry contains language/images/etc. that are actually uncomplimentary to the sponsor's product or brand or that defame an individual or entity?)

Federal Law

Specific Legislation

Sponsors using the Internet to promote or operate a sweepstakes or contest must comply with a number of specific federal acts, including the Children's Online Privacy Protection Act (COPPA), which prohibits unfair or deceptive acts or practices in connection with the collection, use, and/or disclosure of personal information from and about young children (individuals under the age of 13) on the Internet, and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), which establishes a set of national standards for the use and transmission of commercial email, criminalizing certain types of commercial email and giving recipients the right to opt-out of receiving certain email.

Due to the prevalence of smartphones, sponsors are anxious to advertise and conduct their promotions using texts. Promotions involving telephone (including cell/mobile phone) calls or texts are subject to the Telephone Consumer Protection Act (TCPA). For TCPA purposes, a text is the equivalent of a telephone call. Among other things, the TCPA requires a company to obtain a consumer's written consent before sending a commercial text to the consumer. The company cannot simply add such consent to its privacy policy and have the consumer accept the privacy policy change; nor can it include such consent as part of its promotion rules or use a text to obtain the required consent. The Federal Trade Commission (FTC), which administers the TCPA, has issued no guidance that would allow sponsors to work around the requirements by using push notifications within an app to administer their promotions.

Deceptive or Misleading Advertising

A current hot topic in advertising is hashtag contests, where users post on social media using a unique hashtag. All Tweets/posts made during the promotion's stated entry period become entries, provided that they include the required hashtag. Sponsors favor these promotions because they are often cheaper to administer than website-based promotions and can require relatively short lead times.

However, the FTC has expressed concern that many readers might not understand that the hashtag means that the poster made the post as part of a sweepstakes or contest and in return for a chance to win a prize. According to the FTC's Endorsement Guides, "Making the word 'contest' or 'sweepstakes' part of the hashtag should be enough. However, the word 'sweeps' probably isn't, because it is likely that many people would not understand what that means." Creative marketing departments have already concocted possible workarounds. For example, will the FTC crack down on sponsors who, arguably, can avoid these disclosure requirements by allowing entrants to simply repost a sponsor statement?

Other Limitations

When advertising or operating a sweepstakes or contest via the Internet, an app, or social media, sponsors must also comply with numerous non-governmental obligations, including web site terms of use (e.g., advertising rules, community standards, and privacy policies), contracts with ad agencies or others assisting the sponsor in conducting the promotion, contracts with third parties (e.g., name and mark licensing agreements), and their own privacy policies. Failure to comply with these obligations can result in premature termination of the promotion, negative publicity, termination of the sponsor's account privileges, and/or breach of contract claims or intellectual property disputes.

For example, social media sites/platforms often have written (but sometimes difficult to locate) guidelines about advertising and operating promotions like contests and sweepstakes there. While many of the promotion guidelines contain some common requirements (e.g., each participant in a promotion must release the website/platform from any liability related to the promotion, the promotion must clearly state that the website/platform is not sponsoring, endorsing, or administering the promotion, etc.), specific guidelines do vary on social media. Confirm that your proposed promotion is an acceptable use of a particular site or platform before utilizing it to run or advertise your promotion.

Companies can benefit greatly from using evolving technology to advertise and administer their product promotions. But, as Tumblr's promotion guidelines advise marketers, "Keep in mind that you're always responsible for the legality of your contest, sweepstakes, or giveaway … and lots of detailed state and federal laws apply (at least in the U.S.), so we urge you to take them seriously and ask a lawyer if you have questions or concerns."


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.