Organise a solid promotional contest - the winner takes it all!

Companies organise (online) promotional competitions or contests to attract customers and boost their reputation. However, several rules apply to the organisation of such contests. Make sure you follow the applicable rules and avoid attracting unwanted attention.

Below you’ll find MDP’s 10 rules of thumb when organising (international) promotional competitions:

• 1. Be clear on the contest basics: Provide clear information on the basics of the competition, for example exact start and end date / time (where relevant including applicable time zone), whether a purchase obligation applies, minimum age to participate, clear information on which and how many prizes can be won, etc. 
• 2. Provide POS information: Make sure that the basic information is also reflected in the customer facing / POS information made available (e.g. billboard, leaflet, …).
• 3. Carefully select the type of competition: Beware! Very strict rules apply in Belgium relating to the type of competition organised. Some games are considered “lotteries” (principally prohibited, even when free); some are considered “games of chance” (principally prohibited; the rules are heavily enforced); some are considered “skill games” (generally allowed). A good understanding of the competition mechanic and applicable rules is therefore strongly recommended.
• 4. Consider specific prize consequences: Make sure that the necessary (contractual) safeguards are put in place, dependent on the type of prize awarded. For example: when awarding alcoholic drinks, it’s obvious minors should not be able to participate. When awarding a car, it should be clear who pays for certain contributions, etc.
• 5. Draft a solid set of competition terms: Draft clear, concise but comprehensive and easily accessible terms and conditions applicable to the organisation of and participation in the competition. These terms should include a standard set of (mandatory) provisions, but should preferably also include several provisions protecting the interests of the organiser (e.g. liability limitations; the right of the organiser to change the prize with an alternative with similar value; etc.).
• 6. Get your privacy / GDPR story straight: Let’s face it, many organisations use competitions to gather personal data about participants. This is not prohibited, but the organiser must ensure that all necessary privacy information is made available and necessary consents have been obtained. When working with third party processors (e.g. website designer, advertising agency, etc.), make sure the necessary processing agreements are in place.
• 7. Evaluate tax aspects: Mind possible tax consequences the participants (and organiser) should be aware of.
• 8. Mind consumer law aspects: When the promotional contest is aimed at consumers, consumer protection rules will apply. This includes providing certain information and carefully drafting the applicable contractual clauses (cfr. unfair contract clauses in B2C relations).
• 9. Make sure you can use the winner’s photo: Obviously, organisations will want to make publicity around the competition’s winner(s). For example posting photographs of the winner on social media. If so, make sure the necessary contractual provisions are in place that allow you to use someone’s portrait rights on the selected media. Equally, where the competition involves sending in a creation (e.g. a slogan, a work of art, …), make sure you are able to use that creation the way you want.
• 10. Additional care is needed for organising international contests: In the event your competition crosses borders, you will want to take additional care. The rules on which kinds of contests are allowed, tax consequences, information obligations, etc. may differ from country to country. Practical requirements may equally differ, for example the obligation to involve a bailiff during the course of the contest (several countries impose this as a legal requirement). Also be mindful of the language(s) used during the competition to avoid that a consumer would later claim s/he has not validly consented with the applicable contest rules.

MDP lawyers regularly assist clients in this area and can help you with any question related hereto. For more information regarding the above, please contact Antoon Dierick.