Rewarding likes, comments, shares and tags is currently a legal grey area and such campaigns risk being stopped by Facebook or even prohibited by the Consumer Ombudsman if they are deemed to be too aggressive. It is unlikely that any fines will be imposed – provided that an opportunity to opt out of future messages from the same business is given. However, a careful advertiser should consider to refrain from rewarding shares and tags. Furthermore, prizes should not be contingent on achieving a certain number of likes.
By Attorney-at-Law Asser Rung-Hansen
If you check your “news feed” on Facebook, you can hardly avoid reading about cars, vacations and household goods that your friends are trying to win – and that you can win too if you, for instance, ”like” a certain post.
However, is it legal for a business to require:
- shares; or
- tagging a friend
as a condition for participating in a sweepstake?
According to Facebook’s own rules, requiring likes and comments is permitted, but the rules do not allow campaigns that require sharing or tagging as a condition for participating in a sweepstake.
Naturally, Facebook may not have the resources to enforce these rules consistently.
The Danish Marketing Practices Act, however, is enforced by the Danish Consumer Ombudsman and the courts. The act requires that advertising is not misleading and that marketing messages are not disguised in a way that makes it difficult for consumers to identify them as marketing.
The act also prohibits spam, i.e. sending advertising by means of electronic communication to people or businesses who have not given prior explicit consent to receive such communications.
The Danish Consumer Ombudsman has published a position on social media marketing, in conjunction with other Nordic ombudsmen, stating that it is unclear whether the message that you receive in your news feed on Facebook when friends like or comment on a post can be considered “electronic communication”.
However, it is the preliminary view of the Danish Consumer Ombudsman that such messages cannot be considered electronic communication, and that therefore the ban on spam is not applicable. Consequently there is only a requirement that Facebook users can easily opt out of receiving further communications from the business in question. In other words, Facebook advertisements may be spread through likes and comments until the recipient says stop – in contrast to the general ban on spam, which means that no advertising may be sent by e-mail or other electronic communication channels before a specific acceptance has been obtained from the recipient.
The Consumer Ombudsman’s view on rewarding shares and tagging is less clear. On one hand the Consumer Ombudsman’s above-mentioned position states that posts on a timeline must be regarded as ”electronic communication” and that consequently the spam ban applies. On the other hand, the Consumer Ombudsman states that rewarding shares is covered by the opt-out rule – conversely it must be inferred that there is no requirement for prior explicit consent.
The Danish Consumer Ombudsman has previously indicated that as a point of departure, fines for spam will be set at DKK 100 per e-mail. If this is also to apply to Facebook spam, a campaign that really goes viral could end up being very costly. However, as long as the Consumer Ombudsman has not communicated anything different from the above approach, it is very difficult to imagine that fines will be imposed on anyone for rewarding likes and shares on social media such as Facebook.
It is worth noting that the Consumer Ombudsman appears only to have considered the purely technical question of whether messages in a Facebook news feed or timeline generated by a like, share, comment or tag may be regarded as ”electronic communication”. It seems that the Consumer Ombudsman did not consider whether awarding likes, shares, comments or tags is contrary to the fundamental requirement of good marketing practice in the Danish Marketing Practices Act.
Awarding likes and other forms of social media approval could be considered as misleading people into thinking that their friends sincerely recommend the business in question, and usually the Consumer Ombudsman is sceptical towards friend-to-friend solicitation. However, in general, the Consumer Ombudsman has only condemned campaigns in which it was not obvious that the person recommending a product or business did this to receive a reward. When someone participates in a sweepstake on Facebook that requires participants to give a like, it will normally be clear to friends that the like was given only to win a prize, and therefore the method as such is hardly misleading.
However, even if awarding likes does not mislead, the method could be considered to be too aggressive and therefore in conflict with the Marketing Practices Act. If, for instance, a like is requested but there is also a certain number of total likes that need to be achieved before prizes are given, it can put undue pressure on friends to participate and can also incentivise people to spread the post more aggressively by actions such as tagging friends.
When Facebook’s own rules differentiate between rewarding likes and comments on one hand and rewarding shares and tags on the other, it is probably because Facebook has realised that rewarding shares and tags are more aggressive methods resulting in posts on Facebook users’ timelines. Rewarding tagging may be regarded as particularly aggressive because the tagged person becomes associated with the business in question without having consented in any way.
Time will show where the Consumer Ombudsman and the courts will draw the lines.
Rewarding likes, comments, shares and tags is currently a legal grey area and such campaigns risk being stopped by Facebook or even prohibited by the Consumer Ombudsman if they are deemed to be too aggressive. Until the Consumer Ombudsman has expressed a stricter interpretation of the Marketing Practices Act, it is unlikely that any fines will be imposed – provided that an opportunity to opt out of future messages from the same business is given. However, a careful advertiser should consider not rewarding shares and tags. Furthermore, prizes should not be contingent on achieving a certain number of likes.