Interactive Promotions including sweepstakes, contests and instant-win games can deliver many benefits to both marketers and consumers. However, brands and agencies should consult a professional that specializes in the administration of these types of promotions to help in complying with multiple federal and state laws and regulations. I’ve been considering adding a regular feature post to review promotional marketing law, so I invited a lawyer that I work with who specializes in this area to become a guest blogger to share his knowledge with us.
Please welcome Ed Chansky who is going to help us stay ahead of the legal and technological evolutions found with Interactive promotions. Ed has been with the law firm Levett Rockwood since 1988. He practices in the areas of intellectual property, Internet and trade regulation law, including protection and licensing of trademarks and copyrights worldwide, and electronic commerce, advertising, promotion, sweepstakes and anti-trust law.
Ed is currently a Director of the Promotion Marketing Association (PMA), co-chair of the PMA Westchester-Fairfield chapter, co-chaired the PMA's 2002 national Promotion Marketing Law Conference in Chicago and speaks regularly at its annual conferences. From 1998-2001 he served as chair of the Intellectual Property Law Section of the Connecticut Bar Association.
Ed Chansky: An emerging trend has been the explosion of CGC (consumer-generated content) in sweepstakes and contest promotions. A central issue for any such program that allows the public to vote on the winners is whether the outcome is determined by skill or by chance.
Traditional skill contests use verifiable judging criteria applied consistently by a panel of competent judges. If a program allows the public to vote on consumer-generated entries, is the outcome based on skill? On chance? On an ability to get friends to stuff the ballot box with votes for your entry? It’s often hard to tell.
Eliminating the element of chance can be important in two different circumstances:
- The entry process involves a substantial amount of time and effort, which can be deemed consideration for lottery law purposes in about 20 states.
- The sponsor wants the program to have integrity and to select the “best” entry without a tainted or suspect selection process.
Here are some recommended procedures:
Have qualified judges select finalists based on disclosed criteria, one of which is “public appeal,” then let the public cast the final votes on the “public appeal” factor. The public presumably is qualified to voice its opinion on that factor.
Decide how to weigh the public voting. There are at least two choices:
- Treat the final round like the final heat of a race in the Olympics – whoever gets the most votes is the winner, just like the winner in the finals gets the gold medal regardless if the runner up set a world record in the preliminary rounds.
- Compile a cumulative score where the public voting counts for a limited portion of the overall decision. This may be fairer in some respects, but it also may be hard to administer. How do you weigh an overwhelming public vote for one entry against a stronger rating by the judges on other criteria? The math can get tricky. So can the public relations aspect when the public favorite is not the winner.
Follow your own rules. If you announce that entries must be only 100 words, or 1 minute in length, etc., don’t post a non-complying entry on the web site for voting. Doing so gives ammunition to non-winning entrants to attack the judging process.
Try to avoid having a random drawing at any point in the process. If you must have one to narrow the initial group of entries, then clearly disclose that fact so that entrants understand the chance element, and try to make the entry process relatively simple to avoid the consideration issue based on “substantial time and effort.”
Protect the integrity of the voting. Try to limit votes to one per person and per email address. There is no reason to allow multiple voting by the same person. Doing so only encourages stuffing of the ballot box to skew results. Use technological safeguards to protect against hacking or other tampering.
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