What should be considered when running sweepstakes on social media?

Sweepstakes on social media are a great way to build customer loyalty or even to grow your own social media channels. However, the legal requirements should be observed.

Above all, sweepstakes must be designed and executed transparently. In principle, there must be no deception of users.

From a legal point of view, the lottery must be measured against § 657 BGB:

Anyone who offers a reward by public announcement for the performance of an act, in particular for bringing about a success, is obliged to pay the reward to the person who performed the act, even if this person did not act with regard to the offer.

In addition, competitions must not be misleading, as otherwise there is a risk of warnings under the Unfair Competition Act (UWG)

Important points include:

• Only an action that is empirically verifiable may be required.
• The selection of winners must be fair and comprehensible. Ideally, these should be checked by a third person and the result should also be archived. Information must be provided in advance about the method of drawing lots.
• The duration of the competition must be clear at all times.
• It must be clear who is allowed to participate in the competition and who is excluded from participation.
• It is not permissible for a user to increase his chances of winning if he buys a product or perceives a service in return. However, it is permissible to make participation in a sweepstake completely dependent on the purchase of goods.
• When coupling e.g. with the registration with a newsletter, the concrete design is relevant (see this post) and dei specifications are to be observed, which the ECJ has made, for example, in connection with voluntariness (see the setting of cookies, etc.).

Of course, all rules can also be included in extra conditions of participation. However, these must be accessible via the same medium as the competition. So you can’t host a contest on Twitter or Twitch and hide the terms and conditions somewhere on your own website.

Of course, conditions, prizes or the like may not change later, after some people have participated, to the detriment of those people.

If, by the way, you want to take fees for participation, they should not exceed 50 cents according to current case law, and young people/children under the age of 14 should not be allowed to participate in paid lotteries at all. .

Especially when we talk about sweepstakes on Twitch or YouTube, it is important to note that all other aspects of the protection of minors must of course be observed as well. Thus, these are not likely to be developmentally disruptive and the gains are commensurate. As an example, computer games that are not rated for minors may not be part of the sweepstakes if young people can participate (not just not allowed!) and of course you may not offer products that are not rated for minors as prizes.

Considering the current discussion about influencers and surreptitious advertising, it should be noted that a note is necessary if the prizes come from sponsors and what the intention of a competition is. For example, a notice or clarification is mandatory if a sweepstakes or contest is conducted as part of an advertising campaign for which the streamer/influencer is paid.

Data protection must also be taken into account. Users must therefore be informed about the way in which data is stored, only the necessary data may be collected, and the data must be stored securely. Of course, other GDPR requirements such as information to users or deletion by users must also be observed. If data of persons under the age of 16 is stored, the consent of the parent or guardian is generally required.

Violations may result in warnings from competitors, but also in reactions from the media authority, for example. Failure to send winnings or pay winnings will expose you to civil claims.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.