November 21, 2022 by Ava Aslani
It seems that the holiday season in the 21st century brings with it an endless supply of social media contests and giveaways. They can be fun and creativity is great but, for these to be effective and legal, there are some key concepts to keep in mind when running an online promotion, including the application of the Criminal Code, the Competition Act, privacy, and anti-spam legislation.
The Criminal Code contains provisions aimed at preventing illegal lotteries. While the relevant provisions of the Criminal Code are complex and somewhat archaic, there are three elements to an illegal lottery:
Because of these “illegal lottery” offenses, contest organizers typically try to remove either the consideration element by providing a “no purchase necessary” entry option or the chance element by including a “skill-testing question” as a condition of winning (or a combination of both elements).
Including a skill-testing question means the contest won’t boil down to pure chance, but still involve an element of skill.
As far as the consideration element, even with online contests, many contest organizers continue to provide a “no purchase necessary” entry option (i.e. snail mail entry alternative) even when purchases are not required by the entrant. This is due to the ambiguity around the meaning of “valuable consideration” under the Criminal Code and in particular the question of whether the payment of internet service provider fees constitutes “valuable consideration”.
The Competition Act
In addition to the Criminal Code, the Competition Act sets out several requirements for contests and, in particular, requires that there is adequate and fair disclosure of:
Guidelines published by the Competition Bureau note that the disclosure should be made before the contest entrant is inconvenienced. The Guidelines note that contest organizers should provide a short list of the contest rules that contain the following information:
It is also recommended to include a link to where the full contest rules are available.
Also, in advertising the contest, you should take caution and be sure not to mislead entrants given that the misleading advertising provisions of the Competition Act apply to the advertising of the contest as well.
The federal Privacy Act and B.C.’s Personal Information Protection and Electronic Documents Act can also come into play with the law of contests because most times you will be asking entrants to provide personal information upon entering a contest or winning a prize. The key is to ensure that contest entrants are informed as to why their information is being collected, and that the information collected is only being used for its intended purpose unless the entrant has consented to additional uses.
You will also need to consider the application of Canada’s Anti-Spam Legislation (“CASL”), which may apply where, for example, entrants are to be invited by email to participate in a contest, for the follow-up with entrants by email, or subsequent email marketing (e.g., where a contest includes the right of the promoter to engage in subsequent marketing to entrants).
To ensure compliance with CASL, keep in mind that:
Social Media Platforms
If you use any social media platforms to communicate or administer your promotion, you will also want to consider the specific rules set out in that platform’s terms and conditions. And remember that these rules are constantly changing, so it’s important to double-check the rules each time you are looking to run a new contest.
Most platforms have some variation of: “you are responsible for the lawful operation of your promotion, including stating the official rules, offer terms and eligibility requirements, and compliance with applicable rules and regulations” so the onus is on you to make sure your promotion complies with all the applicable rules and regulations.
Online promotions can be a valuable marketing tool for businesses, but if you choose to partake in this new-age holiday tradition, make sure you have a good set of giveaway rules that comply with the various laws and regulations that may apply to your promotion. Also, keep in mind Advertising Standards Canada’s regulations on paid social media endorsements. Simply put: if your business is receiving any sort of compensation for promoting a sponsor for the giveaway, that needs to be disclosed.
Get in touch with Ava Aslani for your Business Law needs.