When running sweepstakes and other promotion activities on Facebook or Twitter it is essential to be aware of local law pitfalls arising in connection with terms and conditions.
Guidelines issued by Facebook & Co. in regard to the realization of promotion activities (e.g. the “Facebook Pages Terms”) do not cover all relevant aspects. Therefore, statutory provisions aiming at the protection of minors, of consumers, or data privacy, must be observed in the promotion terms in order to avoid that the promoting company experiences unpleasant “side effects” (e.g. being in breach of the German Act Against Unfair Competition and giving consumers’ associations the possibility to bring an action in court).
For example, section 6 (1) no. 4 of the German Telemedia Act requires that contests with an advertising nature have to be clearly identifiable as such. Depending on the design of the sweepstakes and the type of the prizes, potential age restrictions apply. Further, taking notice of the participation conditions must be feasible in a reasonable manner which includes that they are provided in German language.
In case that communicating personal data is necessary in order for a user to participate the organizer is obligated to inform the user of the type, scope and purpose of the gathering and processing of personal data prior to the usage in a “generally understandable way” (section 13 (1) German Telemedia Act). The user’s declaration of consent with respect to data processing is valid only if (i) it is given in a clear manner; (ii) has been actively provided; (iii) the user has access to the content of his declaration at all times; and (iv) the user is able to revoke his declaration of content with effect for the future at any time.
Since the Facebook Pages Terms only exclude Facebook’s liability, it is advisable to limit the promoting company’s liability in the participation conditions. The respective clause is to be drafted in line with the relevant provisions of the German Civil Code as to the use of standard terms.
Recommendation for action
Ensuring compliance with statutory provisions is essential for running sweepstakes on the internet successfully in Germany. Only by this, written warnings from competitors, law suits filed by consumers’ associations, and other unpleasant side effects resulting from the (non-intentional) breach of provisions dedicated to protect consumers, minors, or data privacy can be avoided.
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