Sofia Mercedes Bovoli– Trainee
It is now increasingly common to come across operations and competitions on social networks, such as Facebook and Instagram, which provide for the awarding of prizes, discounts and refunds given to users in exchange for publishing a "post" or sharing a "story" on Instagram.
These phenomena, more and more growing, are in fact winning Marketing activities that have as a central idea to make the protagonists of the promotional activity the users themselves, inviting them to create content and to personally promote a certain product.
From a legal point of view, however, the applicable legislation is very strict and, unlike prize competitions, does not give discounts.
Our legal system regulates these phenomena in the Presidential Decree N. 430/2001 which includes most of the prize contests that we are used to see on social networks and distinguishes between:
prize competitions
options trading
The first ones consist in promotional initiatives through which prizes are awarded without any purchase condition, therefore the awarding of the prize will depend only on fate, on a computer system or on an algorithm. The latter, on the other hand, consist of a contest in which a prize is offered to all those who have purchased a product during the launching of the promotion.
There are only a few exceptions and derogations to the discipline, for example, competitions that have social purposes, those that provide for the production of literary, scientific or artistic works or in the case where the prize is represented by a discount or objects of minimal value are excluded from the application of the regulations.
It is also necessary to point out that, in order to organize a contest on the main Social Networks, such as Facebook and Instagram, although the association with them is no longer an essential requirement, it will be necessary to comply with the specific conditions provided for by the Social Network itself and, in particular, to explicitly exclude in the regulation of the promotion any association with the same, relieving it from any liability that may arise from the launching of the operation or of the contest.
Moreover, the Ministry of Economic Development, through the updated FAQ published on 13 February 2020, has clarified some particularly thorny points of the regulations.
In fact, it has been highlighted how it is possible to exclude the association with Social Networks and consequently dispense them from any liability, only in the case where equal opportunities for all participants are guaranteed. Therefore, the registration to the Social Network cannot constitute a limit to the participation to the promotional initiative, it will be necessary, therefore, to reserve the participation to the contest only to those who were already registered to the Social Network before the beginning of the promotion or to offer to the users the possibility to participate also through different and alternative modalities.
Another important and particularly limiting element is the location of the server for the acquisition of participation in the promotion, which must necessarily be located on Italian territory.
In conclusion, the organization of operations or competitions with prizes is far from being simple and immediate, but it is necessary to provide for the drafting of a detailed regulation, to communicate notice of the call of the competition 15 days before its beginning to the Ministry of Productive Activities, to pay the deposit equal to the value of the prizes as a whole and to adopt a privacy policy in compliance with the GDPR.