Imagine that you launched a regular contest or placed a banner on VKontakte and are all sitting in anticipation of thousands of profits in 300. But instead they demand 500 from you - with FAS the jokes are bad. Fearfully? U.S. too! Therefore, we asked a lawyer to tell the most important thing about contests and promotions on the Internet.
Information will be useful to all SMM-ps and community managers.
Material provided by Andrei Ivanov, specialist center 1yuts.rf.
Depending on the conditions and other signs, promotions belong to different categories of events and are regulated by different legal acts:
- stimulating activities - art. 9 of the Law "On Advertising";
- public competitions - ch. 57 of the Civil Code of the Russian Federation;
- Lottery - the law "On the lottery."
First, consider the general requirements for advertising, which should be observed in any case, and then we will understand how not to violate the law during the promotion, public competition and the lottery.
What requirements should meet any advertising on the Internet
General requirements to be followed in any advertisement are enshrined in Art. 5 FZ "On Advertising":
- good faith;
- compliance with prohibitions.
For clarity, we give a few examples.
- Unscrupulous the law recognizes advertising in which the product is incorrectly compared with the product of competitors.
Take a look at the banner.
Such advertising is considered improper, because the company compares itself with its competitors by only one criterion - price. There is no comparison in terms of quality or any other conditions, so from the point of view of judicial practice it will be incomplete.
- Unreliable Advertising contains information that does not correspond to reality.
"Medicines for all diseases" is not, any medical doctor will confirm.
- Bansthat you need to comply with advertising, a lot.
For example, in ads you can not use swear words, even veiled. The law enforcement practice of the antitrust authorities and the courts is going to ensure that such advertising is inappropriate.
For example, such a banner to place on the site is risky.
Known for its provocative marketing, Burger King has already attracted the attention of the FAS with another ambiguity.
How not to violate the requirements
To ensure that ads do not fall under any of these categories, I advise you to avoid:
- incorrect comparisons, for example: "Tastier than in“ Papa Jones ”";
- statements that have nothing to confirm, for example: "The best coffee in Saratov";
- questionable "word games" with obscene expressions, for example: "EdAl such ";
- provocative images, for example: "I GIVEN TO YOUR NEIGHBOR a month of the Internet for free."
If in doubt, consult with colleagues and a lawyer before placing - so you will avoid fines and reputational losses. However, unsuccessful advertising to undermine the reputation of the brand, breaking the law is not necessary. Think of the recent HYIP with the “feminist” campaign of Reebok.
How to advertise incentive events
In addition to general requirements, the Law on Advertising introduces additional rules for announcements of promotional events - contests, games and the like. In the advertisement it is necessary to indicate:
What happens if you break
Consider the penalties on examples:
- No date for the promotion.
In Tambov OFAS found a violation in the announcement of one of the jewelry networks.
The advertiser has not specified the date of the action, only a source of detailed information, but this is not enough. FAS ordered the company to eliminate the violation, otherwise - a fine of up to 500 thousand rubles.
- The year of the action is not specified.
Having written only day and month, you also risk receiving a prescription from the antimonopoly service. Take a look at the banner.
If the company had limited its advertising to such a banner, there would be problems. However, on the page where the image is placed, the exact dates with the year are indicated separately.
The amount of the penalty for such violations is determined by the FAS Commission, guided by Art. 14.3 of the Administrative Code of the Russian Federation - from 100 to 500 thousand rubles. for legal entities.
To protect yourself, write in the ad specific calendar dates.
- There is no information about the organizer, the rules, the number of prizes, the timing, place and order of their receipt.
In several editions of the newspaper "PRO CITY CHEBOKSARY" published an announcement of the drawing among the clients of the window company.
For incomplete information, the Chuvash OFAS fined the entrepreneur for 4,000 rubles, and if a legal entity appeared in its place, the company would have paid at least 100. To avoid such consequences, posting information on incentive measures on the Internet, fulfill all the requirements of paragraph 2 of Art. 9 of the Federal Law "On Advertising".Write not only about who carries out the action and how to participate, but how many prizes there will be, when, where and how to get them, preferably with the exact address. So you will not leave the antitrust authority chances.
How to hold a public competition
Entrepreneurs, not limited to traditional promotions and discounts, announce in social networks and on official websites contests for the best feedback, comment, drawing, poem, story. Such events have signs of a public competition; therefore, they are regulated not only by advertising legislation, but also by ch. 57 of the Civil Code of the Russian Federation.
In contrast to the promotion, in which participants buy goods and services for personal needs, and have the opportunity to get something for free or at a discount, the competition and its results serve the society as a whole. In addition, the promotion benefits all who fulfill the conditions. In the competition wins one or more participants.
The law identifies two types of public competitions:
- Open - the organizer announces the contest in the media and invites everyone to participate. Possible pre-selection of participants.
- Closed - the proposal is sent to a certain circle of people at the choice of the organizer.
The announcement of a public competition must contain:
- the essence of the task;
- criteria and procedures for evaluating results;
- place, term and procedure for submission of works;
- reward size and shape;
- order and timing of the announcement of the results.
Take a look at an example of a legally valid announcement of a competition on the Internet on the site of a well-known brand of animal feed.
It is important not only to competently arrange the competition, but also to fulfill promises. If you wrote that you would announce the winners by the end of April on an Instagram page and contact each person personally - do it. And in no case go back down. If you do not give the reward to the winners yourself, they can collect it through the courts.
How not to hold a lottery instead
Stocks and lotteries have a lot in common, but there are differences. This should be taken into account so that under the guise of a stimulating event, by chance (or intentionally?) Not to hold a lottery. The requirements for the latter are stricter, and the responsibility is more serious.
For convenience, we have reduced the differences between marketing campaigns and lotteries in a comparative table.
Issued by issuing a lottery ticket
Conducting on the Internet
It is impossible
Name, type and purpose;
the name of the organizer and operator where they are located;
concept and organizational and technical nuances;
rights and obligations of participants;
the procedure and terms for receiving winnings;
the procedure for informing participants about the rules and results;
the price of a lottery ticket;
cash equivalents of winnings;
the size of the prize fund and its distribution structure;
the order of the drawing, the algorithm for determining the winnings, the rules of drawing the rolling from the draw to the draw of the super prize.
source of information about the organizer, rules, number of prizes, dates, place and order of their receipt.
When preparing your action, be guided not only by the law "On Advertising", but also by the legislation on lotteries. Make sure that there are no signs of the lottery in the conditions, and if they are, that you are not violating federal law No. 138-FZ
What happens if you break
After the abolition of criminal liability for deliberately false advertising in 2003, only advertising of pornographic materials is recognized as a crime in our country, including among minors and with their images.
For any other violations of the law on advertising administrative responsibility. The rules are divided into general and special:
- General rate - Art. 14.3 of the Administrative Code of the Russian Federation "Violation of the law on advertising". The maximum possible penalty for this article for legal entities is up to 500,000 rubles.for credit organizations - up to 800,000 rubles.
- Special rates:
- Art. 5.9 of the Code on Administrative Offenses of the Russian Federation "Violation of conditions for advertising business and other activities during an election campaign" - up to 30 000 rubles;
- Art. 6.13 of the Administrative Code of the Russian Federation "Propaganda of narcotic drugs, psychotropic substances or their precursors, plants containing narcotic drugs or psychotropic substances or their precursors, and their parts containing narcotic drugs or psychotropic substances or their precursors, new potentially dangerous psychoactive substances" - up to 1,000,000 rubles. or suspension of work up to 90 days with confiscation;
- Art. 6.20 of the Administrative Code of the Russian Federation "Production by a legal entity of materials or objects with pornographic images of minors and circulation of such materials or objects" - up to 5,000,000 rubles. or suspension of work up to 90 days with confiscation;
- Part 4 of Art. 14.3.1 of the Administrative Code of the Russian Federation "Violation by an advertiser, advertising producer or advertising distributor of a ban on advertising tobacco, tobacco products, tobacco products or smoking accessories" - up to 600,000 rubles.
We brought the maximum amount of fines for legal entities, for physicists and officials the figures are less.
If an entrepreneur deliberately or accidentally held a promotion, which is essentially a lottery, but has not fulfilled the requirements of the Federal Law "On Lotteries", responsibility may be incurred under Art. 14.27 of the Administrative Code of the Russian Federation "Violation of the law on lotteries" - up to 350 000 rubles for legal entities.
Brief cheat sheet
- Decide what exactly you are launching - a stimulating action, a public competition or a lottery.
- In an advertisement, be honest, be careful in comparisons with competitors and do not violate the prohibitions.
- Make sure that the conditions and the advertisement itself comply with the law.
- If in doubt, consult a lawyer to protect yourself.
If you did everything right, and you still found violations in the FAS, you can challenge their decision in court.