Are Social Media Raffles Illegal?
Hey there! I know it's been a bit but I promise I'm not dead and AnthroBrand is still very much a thing. I'm going to do my best to always maintain this site as a library of useful information for our community and I still offer limited services at the moment. I've been absolutely buried under my new job, doing the work of five people with no help, but I'm hoping that will change soon. Once I have more free time, I'll be back to posting articles just like before~ I genuinely miss everyone and I want to take a second to thank all of the AB Staff that help me maintain the Discord community. I couldn't do it without you, seriously, and I am endlessly appreciative of your time and support. Anyone with an AB Staff role on Discord is a volunteer and they absolutely deserve thanks!
Now then, before we dive into this article, there are a few disclaimers that I need to get out of the way: Firstly, I am not a lawyer. I do not practice law, do not have a law degree, and this article is strictly for informational purposes only. You can absolutely source all of the information included here yourself, but by putting it all in one place I hope to save everyone a bit of time. Again, not a lawyer, and you should absolutely consult a licensed attorney if you have any questions about the laws in your area. Let's get to it!
Are raffles / giveaways on social media illegal? To put it simply: Maybe.
As with many things in the legal world, the answer to this question is incredibly blurry. This inquiry has an amazing amount of layers, so I'm going to limit the scope of this article to two things: Laws of State (laws that govern you as a specific citizen of where you are) and then Twitter's raffle / giveaway policy. If you really want to dive into this, visit the online legal resources for your state, or consult a licensed attorney. That will give you the most accurate information.
If you're looking for Twitter policy instead of state law, click here to skip on down.
When it comes to Laws of State, this phrase has two different meanings depending on where you live. The first definition, for those of us in the United States of America, refers to the laws of the state which you reside. For my international readers, however, I'm using Laws of State to refer to your country's laws in the broader sense. I live in the US, so I have zero knowledge about other countries or territories.
Since we are getting into legal things, I can also only speak for my specific place of residence. For the following information I will be referring to the Business and Commerce Code (Title 13, Chapter 621, Subchapter A), as set forth by the State of Texas. This chapter is long and contains a huge amount of information, but we are only focusing on raffles / giveaways. For this, we will look to Subchapter B: Gift Offers, and Section 621.106: Required Disclosures Related to Drawings.
Before we get into it, I need to lay out some definitions:
"Contest" means a promotional device in which: (A) a person is offered, as an inducement to attend a sales presentation, a chance to win or receive a prize by complying with specified entry requirements; (B) the winner or recipient of a prize is determined by random selection; and (C) all offered prizes are awarded. "Gift" means an item of value that is offered, transferred, or given to a person as an inducement to attend a sales presentation but that is not offered, transferred, or awarded through a contest. The term does not include a manufacturer's rebate or discount available to the public. "Drawing" means a contest in which the recipient of a prize is determined from all of the entries received.
Now, I have never heard of anyone in the Anthro community going to a sales presentation for commissions. Given the nature of our community though, you can easily see how this could affect promotional devices at both conventions and online. If a creator is offering free gifts to attend their panel, join their Discord community, or even their Twitch stream; these rules could apply.
With that being said, however, this set of rules is really pointing towards companies who offer free food and stationary for attending their presentation about a timeshare. Before we move on though, we are still gonna take a second to see exactly what can't be done in regards to giving gifts as promotional devices. When it comes to gifts in the State of Texas:
Sec. 621.053. PROHIBITED ACTS RELATING TO GIFTS. A person may not: (1) use the term "gift" or a similar term in a false, misleading, or deceptive manner; (2) directly represent or imply that a gift promotion is a contest; (3) in a gift promotion, use the term: (A) "finalist," "major award winner," "grand prize recipient," "winner," "won," "will win," or "will be awarded" or use words or phrases of similar meaning that imply that a person is being solicited to enter or participate in a contest; or (B) "sweepstakes" or "contest" or use words or phrases of similar meaning that imply that a person is being solicited to enter or has won a contest; (4) represent that a gift has a sponsor, approval, characteristic, ingredient, use, benefit, quantity, status, affiliation, connection, or identity that the gift does not have; (5) represent that a gift is of a particular standard, quality, grade, style, or model if the gift is of another; or (6) use a word or phrase that: (A) simulates or causes confusion with a document issued by an officer of a court or with the seal or name of a real or fictitious governmental entity; or (B) implies that the offerer is sending a court document or legal document or that the offerer is a governmental entity.
As you can see, these rules are very explicit in what you cannot do when using gifts as promotional devices. Before we move on, I want to put it out there that these definitions do not apply when you're simply creating something for a friend as a thank you. It's not necessary to have anyone who receives free art, or merchandise, to sign an agreement stating that the gift isn't part of a contest.
When it comes to giving things away during your marketing campaigns, be sure to avoid those buzzwords above and adding any uncertainty to your wording like "art could be fully shaded if I have time." Keep it simple when it comes to gifts and make sure that your intent is very clear.
Gifts and Drawings are two very different things and they need to follow specific guidelines to avoid any legal pitfalls. When it comes to Drawings, which is what we see the most of on Twitter, and social media in general, there is an additional set of rules that must be considered. These rules are not mutually exclusive and you should always consider the definition of a gift when you offer things for free, but also hope to boost your following at the same time.
When it comes to anything legal, it's absolutely best practice to cover your bases.
Drawings (raffles) on Twitter are super common. I see several of these scattered across my timeline all the time and there are laws around these as well. The most important thing to remember is that everything a creator is giving away has value. Nothing in our world is considered free, even if it's not a tangible good, i.e. something that has physical form you can touch. When it comes to drawings in the State of Texas there are a few key things that need to be understood:
Sec. 621.106. REQUIRED DISCLOSURES RELATING TO DRAWINGS. (a) A person may not use a drawing unless the offerer clearly and conspicuously discloses in writing in the offer: (1) a statement of the odds of winning each prize offered, expressed as a ratio in Arabic numerals, except as provided by Subsection (c); (2) the exact prizes to be awarded in the drawing; (3) the beginning and ending dates of the contest period; (4) the date the drawing will occur; and (5) the location at which the drawing will occur. (b) A person engaged in the preparation, promotion, sale, distribution, or use of a drawing shall disclose: (1) the retail value of a prize; and (2) clearly and conspicuously in at least 10-point type that airfare, lodging, or both are not included in a prize that is a trip or recreational activity to the extent that either or both are not included. (c) If the odds of winning a prize cannot be determined because the total number of entries is not known, the offerer shall make a statement to the effect that the odds of winning depend on the total number of entries received.
There are also some restrictions when it comes to Drawings in the State of Texas:
Sec. 621.107. PROHIBITED ACTS RELATING TO DRAWINGS. A person engaged in the preparation, promotion, sale, distribution, or use of a drawing may not: (1) use the term "prize" or a similar term in a false, misleading, or deceptive manner; (2) fail to provide the prize as represented at the conclusion of the drawing; (3) represent that a prize has a sponsor, approval, characteristic, ingredient, use, benefit, quantity, status, affiliation, connection, or identity that the prize does not have; (4) represent that a prize is of a particular standard, quality, grade, style, or model if the prize is of another; (5) misrepresent the odds of winning a prize; or (6) misrepresent the rules or terms of participation in the drawing.
As we all know, when it comes to anything legal, it's absolutely best practice to cover your bases. Given the nature of drawings in our community, it is literally impossible to disclose the odds of winning; and with the limited character count on Twitter, it's even more difficult to disclose the required information. The best practice for this would be to link to your TOS and add a raffle section that meets all of the above requirements for mandatory disclosures. Does anyone do this, though? Not to my knowledge, but it would definitely serve in the benefit of the creators who host these raffles all the time.
My best advice for drawings is to keep them simple, make sure you know the Laws of State that surround them, and be sure that you actually provide the prize at the end of the drawing. If you don't provide your winner with the prize, you could end up in court. I know that sounds crazy, since it was technically free, but you have to keep your word when it comes to contracts like these.
Lastly, especially if you live in Texas, you need to be aware of Subchapter E: Contest Records, and Subchapter F: Enforcement. In short, these two sections explain the required records that must be kept for each drawing, and then the potential criminal penalties for each violation. If you fail to follow the laws in your state, you could be charged with a felony offense, as seen below:
Sec. 621.251. CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly violates this chapter. (b) Except as provided by Subsection (c), an offense under this section is a Class B misdemeanor. (c) An offense under this section is: (1) a Class A misdemeanor if it is shown at the trial of the defendant that: (A) the defendant has previously been convicted of an offense under this section; and (B) the offense for which the defendant is on trial was committed not later than the fifth anniversary of the date of the previous conviction; or (2) a third degree felony if it is shown at the trial of the defendant that: (A) the defendant has previously been twice convicted of an offense under this section; and (B) the offense for which the defendant is on trial was: (i) intentional; and (ii) committed not later than the fifth anniversary of the earlier of the dates of two previous convictions. (d) Subsection (c)(2) does not apply to a violation of Subchapter D. (e) A person may not be prosecuted for more than one offense involving the same promotion regardless of whether that promotion is mailed or distributed to more than one person or is used at more than one location.
Still with me?? I know this is a ton of information for one article, but I think it's important for everyone in our community to understand that their actions online could land them in legal trouble, even if they have good intentions. It is always your best bet to have knowledge of the laws, policies, and proper procedures on your side. As they often say on TV: "Ignorance of the law is no excuse." And according to all the judge shows I used to watch, ignorance doesn't usually hold up well in a legal dispute.
Now that we've taken a look at some examples of Laws of State, let's zoom in on Twitter policy. I'm not going to cover any other websites, because their terms will be different, and it would take me a lifetime to condense them all into one article. If you are hosting a raffle on another site, please take the time to read their TOS, especially if they have a section on promotions. Their rules will always apply and you are way better off equipping yourself ahead of time.
Are raffles / giveaways allowed on Twitter? Once again: Maybe.
Every website out there has it's own set of rules and policies that govern all activity on the site. When it comes to Twitter, we are going to look to their Guidelines for Running Promotions. Twitter welcomes it's users to host Promotions on their site, but there are some key points that I want to make, especially when it comes to language used. From the Guidelines:
Businesses, organizations, and even some creative individuals have hosted contests and sweepstakes through their Twitter profile. Contests and sweepstakes on Twitter may offer prizes for Tweeting a particular update, for following a particular account, or for posting updates with a specific hashtag.
What I want to draw attention to is their use of the phrase "contests and sweepstakes" on more than one occasion. My interpretation of this, again not a lawyer, tells me that Twitter classifies all raffles and giveaways on their site as contests. Which means that every raffle hosted on the site could potentially be subject to contest rules and regulations that are set forth by the State each of us lives in. As a matter of fact, the Guidelines go on to say this close to the bottom of the page:
Before starting any contests or sweepstakes please ensure that they comply with all applicable laws and regulations. Compliance with such laws and regulations is your responsibility; please consult with an attorney if you have questions about legal compliance.
This is likely going to end with the algorithm pushing tweets about your raffle out of people's timeline.
As you can see, Twitter doesn't want to get mixed up in any kind of legal disputes regarding the use of raffles on their site, which is why they define them as contests and then hand the real rules and regulations over to the laws that govern where each user lives. Smart on their part, but super blurry on ours. They include best practices like not to post duplicate tweets, and to avoid telling people to RT the same tweet over and over, but this is likely only going to end in the algorithm pushing said tweets about your raffle out of people's timeline; rather than a lawsuit.
So, what's the verdict?
If you want to run a raffle on social media I suggest you consider the following:
- Make sure you have all of your legal bases covered and you understand the required disclosures around raffles, drawings, gifts, and contests.
- Consider hosting your contest through a third party, like using google forms to collect entries, rather than relying on RTs and Likes on Twitter. Yes, there are programs out there specifically for Twitter raffles, but you can be held liable if they don't operate correctly.
- Make sure you read and understand Twitter's guidelines when it comes to raffles. You could end up losing your entire platform if you break the rules.
This article isn't meant to scare anyone and I hope there aren't a ton of creators out there that are just throwing their raffle plans out the window. I, personally, have never heard of any legal action in the arena of raffles in the Anthro community, but that doesn't mean it can't happen. It is ultimately your responsibility to read all the laws and guidelines, and make sure your TOS appropriately covers everything you intend do to. Especially when you are dealing with anything that has value, no matter if it's tangible or intangible. Raffles are a great way to generate some exposure and get your name out there, but just make sure you are following the rules.
I hope you all enjoyed this article and I want to extend a HUGE thanks to Merlin (the unofficial artist of AnthroBrand) for suggesting this topic. I've been working on this for like a month now, and I'm happy to do all the research and condense it down into something that's readable. I'm genuinely sorry that I can't write and post more often, but this is just how life is at the moment. I'm still here and I'll get back to it once things settle down. If you need help with your TOS, writing raffle rules, or anything like that, please don't hesitate to reach out. My contact information is on the home page~
Thanks for reading!