Contests and sweepstakes are positively tested as a very effective marketing and advertising tool, they provide an intense help in different processes, such as the diffusion of a brand or the marketing of a product or service. It has also been proven that, when carrying out a sweepstakes or contest, we can find undesired situations, which is convenient to know, in order to reduce the risks that can undermine its effective development, therefore, it is important that we take care of all the aspects of its execution. We are going to make here a small review of them.
Aspects to watch out for in an advertising promotion
The following points should be zealously attended to when conducting contests and sweepstakes:
1. Personal data management
This is an issue that is present in all areas of activity when we deal with personal data. In the case of contests and sweepstakes, we will almost certainly collect a significant amount of data, such as the names and surnames of the participants, their e-mail address, telephone number, etc. This implies a legal obligation “per se” to safeguard and take care of the data we handle, a matter that we must prove in any case to the participants themselves and to the administration’s control bodies.
Situations we may encounter regarding the management of participants’ data?
- Adequate collection of personal data.
- The problem with the data of minors.
- Exercise of some of the rights that the personal data grants, such as access or rectification of the data we are handling, as well as, also the opposition or cancellation of the treatments that the participants can ask us.
- Adequate regulation of any possible transfer of data that may occur for the purpose of the development of the contest.
- Consent to communications with participants and/or winners, especially if they are by electronic means.
- Viral. Special care for the position of the Data Protection Agency for the case that we try to “viralize” the promotion entering into the consideration of “spam”.
- Verification of obligations by the competent administration.
2. Creativities
Management of rights derived from participants’ contributions to the contest. Do we ask participants to perform any relevant action in order to participate, that is, if we ask the participant to perform some intellectual development action: a short story, a photograph, any type of work, … this will imply the generation of certain rights derived from the intellectual property of these works: on the one hand, those of the authorship itself (inalienable in our legal system) and on the other hand, the economic rights derived from its exploitation, which may be subject to transaction and therefore, of necessary regulation.
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3. Use of images
Are we going to publish images of the participants, of the winners, of the awarding of prizes…? The image, on the one hand, is a personal data and, on the other hand, object of protection by itself, as it is configured as a fundamental right that consists in essence in preventing the obtaining, reproduction or publication of the image itself by a third party, whatever the purpose – informative, commercial, scientific, cultural, etc. – pursued by the one who captures or disseminates it. Therefore, in the event that the images of the participants are used in any way, the transfer of rights over them should be regulated, in such a way that the time period of use, purposes and channels of dissemination are limited.
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4. Promotion Mechanics
There are many and varied ways of carrying out the promotion, differentiating as large blocks those subject to chance or not, on the one hand, and those in which participation implies a cost or not, on the other. Proper regulation is the only way to avoid conflictive situations with participants.
5. Taxation
Contests and sweepstakes may be subject to direct taxation if they are conducted as a random combination for promotional purposes and, in addition, prizes to winners are subject to withholding tax if they exceed the value of 300 euros. Failure to provide for this situation will result in tax penalties.
6. Promotional risk
This aspect would need a long development, but it can be summarized in the expression “die of success”, i.e. we must calculate our organization’s assumption of an unexpected success of our action and its balance with the reward offered.
7. Fraud in participation and/or voting
The situations that we can find are multiple: false profiles, impersonation, falsification of creativities, …, many of them covered by the criminal code, but that only the use of means of verification and control, as well as the availability of an adequate legal regulation and the mechanisms of promotion, will be able to avoid.
Did you find this article useful? We are Easypromos Ambassadors in Madrid and we are organizing a free workshop on Legal Obligations of Internet sweepstakes on March 14 from 18:00-20:00h. Sign up!
