Today we’re going to discuss how viewers or entrants into your giveaway on YouTube will submit an entry that you will then use to pick the winner? We’ll discuss how traditional giveaways, outside of YouTube, are managed? What’s the legal advantage such giveaways over YouTube-style giveaways? And what is the risk inherent in running giveaways based on comments, likes and subscribers?
Keep in mind that the entry process is integral to whether your giveaway is in legal compliance. Why?Because every single state requires that participants in giveaways, or technically sweepstakes, be presented with a set of Official Rules. And there is no way for you to be legally compliant unless you present your viewers with a way to review and agree to the Rules. The entry process is the only way for you to properly and legally present your viewers with these Rules.
The reason this is done is because of sweepstakes laws and e-signature laws. Sweepstakes laws say that the Rules must be presented to and accepted by the contestant. E-signature laws say that a checkbox next to a link to an agreement is as valid as a paper signature. Put them both together and you have a legally formal way for contestant to accept Official Rules.
Why is this so important? Its because the first issue in any legal dispute is “What are The Rules?” and “Did the Contestant Agree to these Rules?” Using the formal entry process that prevails outside of YouTube, you have a legally accepted way to identify the specific set of rules accepted by the contestant. Its recorded on your servers and is legally sufficient.
Nowadays, most YouTubers ask their viewers to write a simple comment from which a winner will be picked. There is no formal entry process beyond asking people to comment. Is this not legal? Don't worry ... It's perfectly legal. Like I said the law does say that an entry must be done a certain way.
But YouTubers that ask for a comment as a form of entry need to understand that since this process doesn’t incorporate an e-signature, there is no way to ever prove that the Official Rules were presented to the contestant and that the contestant agreed to those specific set of Official Rules.
I’ve worked on hundred of giveaways across all platforms and I know that there is a difference between what lawyers want and what clients can realistically deliver. In this case I understand the reality that simple giveaways on YouTube are very powerful marketing tools.
I’m not try to tell you not to do this. I just want you to understand the legal risk. Make sure that you provide your viewers with the appropriate Official Rules in the descriptions and make sure to mention in the video that the giveaway is subject to those Official Rules (encouraging them to take a look at the description.) But then understand the reality that the legal risk associated with that approach is lack of proof of contestant approval of the Official Rules.
I hope this is useful to you. If you have any questions or concerns, please leave comments below. I’ll do my best to respond.
Lior Leser, Esq.
Technology, Internet and Software Law
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