Promotional Competitions Tip #4: I’ve shown you mine, show me yours and stand a chance to win.
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In addition to lead generation mechanics as discussed in Parts 2 and 3, promoters also often require participants to interact with the relevant competition post (or reel, story or pop-up) as part of the competition entry mechanic, by sharing content generated by the consumer in response to the promoter’s competition post. User generated content can include pictures, videos, comments, voice notes or screenshots, or any other medium, that incorporates the promoter’s products and services and, consequently, drives the conversation on social media platforms.
As well as the personal information of participants contained in user generated content, such as social media handles, names and pictures, there is also a proprietary element to user generated content. This raises the question as to whether the promoter can use the user generated content in any manner it deems fit, and who owns the user generated content.
To the extent that intellectual property rights do arise from any user generated content, a promoter should be careful to ensure that it obtains the necessary rights (either ownership or a wide usage right) to such user generated content if, for example, it wants to publicly share a winning post, story, comment or picture of the winner of a promotional competition. Since promoters won’t have control over the user generated content shared by participants in response to a competition post, promoters also need to ensure that they have adequate rights of recourse when participants share user generated content that can harm the promoter’s brand.
Specifically, a comprehensive intellectual property (IP) provision should be included in the competition terms and conditions, stipulating that IP rights arising from the user generated content will vest in the promoter and that the participants transfer such rights to the promoter. The promoter can also specify that the user generated content must not be immoral, scandalous, illegal or have any adverse effect on the promoter’s brand, as well as prescribe other requirements relevant to the industry within which the promoter operates. For example, if the user generated content is in response to a competition post about alcoholic beverages, the promoter will likely require that the user generated content does not contain any identifying information or pictures of participants that are younger than 18 years. The promoter can also stipulate an express right to require participants to remove the content or to disqualify the relevant competition entry to the extent that the user generated content: (i) does not meet the requirements prescribed in the relevant competition terms and conditions; (ii) poses a risk of reputational harm to the Promoter; and/or (iii) goes against the morals of the public.
Promotional competitions have become a key component of marketing activities for many businesses. They generate exposure and engagement that is immensely important for a business’s brand. However, be careful of potential reputational and data privacy risks as well as consumer protection issues that could arise from these marketing activities. Businesses should be implementing mechanisms to prevent or limit any reputational fall-out or potential legal liability and well-drafted terms and conditions that govern the competitions run by the business is undoubtedly a way to avoid dropping the ball.