Risky Business: The Importance of Clearly Communicating to Consumers when Executing an Interactive Promotion

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Interactive promotions, when executed properly, are an essential tool in an organization’s marketing toolbox.

Whether the goal is to increase consumer engagement with a brand, create hype around a product launch, or gather consumer data for future marketing efforts, promotions provide an exciting and rewarding experience for a consumer that goes beyond a simple buy-and-sell relationship. When running an interactive promotion it’s important that your participants fully understand the fine print.

The risk of not giving proper notice of legal terms can be illustrated by a recent case which has made news in legal circles.  A consumer filed a class action suit against Barnes & Noble regarding its Terms of Use. He argued that while there was a hyperlink at the bottom of every page on the Barnes & Noble website, he didn’t click on the Terms, and so he didn’t read them. The consumer said, therefore, that he didn’t have sufficient notice of the Terms.

Barnes & Noble tried to throw out the class proceedings based on the arbitration clause in its Terms of Use. The plaintiff, however, argued that since he did not have knowledge (or proper notice) of the Terms, he was not bound by the Terms of Use on the Barnes & Noble website.  The court agreed. It did not help Barnes & Noble that the Terms contained this language: “By visiting any area on the Barnes & Noble.com Site, creating an account, [or] making a purchase via the Barnes & Noble.com Site . . . a User is deemed to have accepted the Terms of Use.”

The same argument could be applied to Terms and Conditions or Official Rules for interactive promotions. The clauses that a company deems a contest entrant to have agreed to, including the protections included in any promotion’s Rules or Terms & Conditions, may not be enforceable if participants’ haven’t consented to them. So, here are some key precautions to be aware of when executing interactive promotions:

  1. Provide a mandatory un-checked tick box, a hyperlink to the Rules/Terms, and appropriate language to show acceptance. This should be standard for all promotions. It could be argued that pre-checking the box helps improve consumer experience and creates a faster and more convenient path to registration.  However, a pre-checked box adds risk as entrants are not actively indicating that they are agreeing to the promotion’s Rules or Terms & Conditions.
  2. If for some reason it’s impossible to provide a check box, the Rules/Terms hyperlink should at least be next to the “Submit” button with a clear statement, such as “By clicking submit, I confirm that I have read and agree to be bound by the Terms and Conditions.”

As demonstrated by the Barnes & Noble case, it is best to err on the side of caution and over-communicate so consumers fully understand how they are interacting with your brand. When running a promotion, make sure the binding Rules and Terms & Conditions are presented in a way that makes them clearly visible and easily understandable. This will not only show consumers that they are entering a legitimate promotion, but it also legitimizes your brand and builds trust with your consumer base.

Contact us at to learn about how we can help you mitigate risk for your promotions.

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