Online Giveaways: Just Because Rafflecopter Lets You Do It Doesn’t Make It Legal

grumpy-cat-giveawayMy recent posts here and on Mark Schaefer’s {grow} blog have generated a lot of conversation among bloggers and brands about giveaways. The first question I set out to answer on my blog was “what is the difference between a contest and a giveaway, and how can I run each legally?” The next question I answered was “why is everyone else running giveaways illegally?”

Which brings me to this latest conundrum:
How can my giveaway be illegal if Rafflecopter (or Random.org or a WordPress plugin or a Facebook app) lets me do it?

Answer: Rafflecopter doesn’t protect you if you get sued. Your giveaways are your problem.

Maybe that’s harsh, but just because Rafflecopter or some other website or app developer gives you the mechanism to run a giveaway doesn’t mean that giveaway is legal where you are, or that it adheres to the terms of the site or social network you use to promote the giveaway.

Giveaway sites and tools specifically pass liability for illegal giveaways on to you—you might even have to reimburse them for their legal fees if they’re dragged into a lawsuit over your giveaway!

Here’s the key language from several commonly used giveaway websites and apps:

rafflecopter-logo-social-media-contestRafflecopter
I don’t mean to pick on these guys—they’re just the most commonly mentioned when bloggers contact me in a panic after reading one of my posts on the law governing contests and giveaways.

 

First, here’s the part where they shift liability running an illegal giveaway to you.

You acknowledge Rafflecopter is not responsible or liable for the failure of any Admin (or any third-party) to comply with the rules, terms, conditions, policies, and applicable laws, rules, or regulations governing any promotion or giveaway.

RAFFLECOPTER DOES NOT SPONSOR, ADMINISTER OR ENDORSE THE CONTENT OF ANY PROMOTION OR GIVEAWAY DISTRIBUTED THROUGH THE SITE UNLESS OTHERWISE STATED AND IS THEREFORE NOT LIABLE.

And here’s the part where they require you to reimburse them if they wind up involved in legal proceedings as a result of your illegal giveaway:

You further agree to indemnify, defend and hold harmless Rafflecopter and its parent companies, affiliates, and subsidiaries; and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors from any and all claims, losses, liability, damages and/or costs (including attorneys’ fees and costs) arising from your use of the Service.

However, this is not an anti-Rafflecopter rant. As services go, they’re easily the go-to favorite among bloggers, and for good reason.

Rafflecopter does make an effort to comply with the different social networks’ giveaway rules (they made changes to their service when Facebook updated their platform policy impacting third-party apps last year), but they don’t promise that all Rafflecopter features comply with all laws and regulations everywhere.

Use the service if you want. Even upgrade to the premium version, if you want access to more features. But don’t think that paying for a Rafflecopter account means that any of the giveaways they enable you to run pass muster from a legal standpoint. That’s on you.

Knowing the law as it applies in your jurisdiction is your responsibility. NO company is going to insure you against your own ignorance. 

If you get sued, you’re on your own.

 

RandomRandom.org
Another site bloggers frequently mention, Random.org helps you to run giveaways that award prizes to an entrant at random. (I know, who saw that coming?)

Here’s the language they include in their Acceptable Use Policy that places the blame for an illegal giveaway squarely on your shoulders:

You may not use our site…in any way that breaches any applicable local, national or international law or regulation.

In other words, you are responsible for a) knowing what the applicable local, national or international law or regulation is in your area and b) complying with it.

Here’s the bit where they shift liability for any mistakes in that regard to you:

We exclude liability for actions taken in response to breaches of this acceptable use policy. The responses described in this policy are not limited, and we may take any other action we reasonably deem appropriate.

Even if you use their interactive services to run a promotion, Random.org disclaims liability:

[W]e are under no obligation to oversee, monitor or moderate any interactive service we provide on our site, and we expressly exclude our liability for any loss or damage arising from the use of any interactive service by a user in contravention of our content standards, whether the service is moderated or not.

In other words, any problems that arise with a promotional draw or giveaway are your problems, not Random.org’s, and you’ll have to deal with them.

wordpress-logoWordPress Plugins
Some sites operating on WordPress use plugins like Golden Ticket and Give It Away Now to run on-site giveaways. Most of these plugins use the Free Software Foundation’s GNU General Public License, Version 2 (GPL2), putting a note under “License” in their plugin documentation (usually “readme.txt” in the download folder) that you are adopting the GPL2 license.

Arrow-WP-License

Here’s the pertinent language in the GPL2 license:

Because the program is licensed free of charge, there is no warranty for the program, to the extent permitted by applicable law. Except when otherwise stated in writing the copyright holders and/or other parties provide the program “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the quality and performance of the program is with you. Should the program prove defective, you assume the cost of all necessary servicing, repair or correction.

This is broader language (not specific to giveaways), because it applies to all types of WordPress plugins that use this license. Still, it seems clear that any problems—whether with the functionality or copyright law or other issues—are your problems, not the developer’s.

Facebook Apps
There are too many Facebook giveaway apps to cover them all, but here’s the applicable language from two popular tools: Giveaway Tab and Woobox.

giveaway-tab-logoGiveaway Tab

Any problems that arise from the giveaway, should be taken up with the third party, not Facebook, or the Giveaway App.

Not as polished as most lawyers would like to see, but you get the point.

 

wooboxWoobox

You expressly relieve Woobox from any and all liability arising from your use of any Sponsor or third party website or service. Accordingly, we encourage you to be aware when you access some features of a website or services which are provided by, with or through a Sponsor or a third party, to read the terms and conditions and privacy policy of each third party’s website and service that you access.

“Any and all liability” means “any and all.” Your giveaway, your concern, and if Woobox gets dragged into it, you’ll have to cover their legal bills.

You further agree to hold harmless Woobox and its parent companies, affiliates, and subsidiaries; and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors from any and all claims, losses, liability, damages and/or costs (including attorneys’ fees and costs) arising from your use of the Service.

“Hold harmless” means to protect them from liability, for example by covering their attorneys’ fees if they have to defend against a lawsuit brought by one of your giveaway entrants or the FTC.

Bottom line: you’re responsible for making sure your giveaway complies with all applicable laws (state and federal), as well as the requirements of the specific social network or site you’re using (e.g. Facebook).

Don’t take any of this to mean that I dislike giveaways (or contests—a safer, merit-based alternative). But as is the case with any tool, users need to learn how to use Rafflecopter, Woobox or your app of choice responsibly, and with a full understanding of the risks involved.

Laws vary depending on which state (or country) you’re in, so if you want to consult with an attorney, I recommend Sara F. Hawkins. Like me, she’s an attorney who’s well versed in social media. Unlike me, she’s still practicing! (I develop training programs for MarketingProfs and speak at conferences and events about the law as it impacts marketers, bloggers, and brands.)

Questions? Let’s talk on Twitter!

/Begin mandatory disclaimer/ This post and any articles linked from this post are not legal advice and are not intended as legal advice. All posts on this site are intended to provide only general, non-specific legal information. This blog does not create any attorney-client relationship, and is not a solicitation. /End mandatory disclaimer/

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