Participation in a competition is considered a game of chance

Competitions in times of the GDPR - what you have to consider!

Sweepstakes are also very popular in times of the GDPR: Entrepreneurs hope that their use will attract more attention from potential customers and thus gain a competitive advantage. However, the organizer of a competition must ensure that it takes place within what is legally permissible. The first step should be to draw up legally compliant competition terms and conditions. But that's not all - you can read in our new article what you still need to consider in order to turn your competition into a win.

Competition or game of chance?

From a purely linguistic point of view, the two terms hardly seem to differ, but from a legal point of view there is a big difference. A competition is the invitation to participate in a game in which the winner is determined by a random element.

On the other hand, there is gambling, which demands a not inconsiderable stake from a fellow player. This not insignificant effort is made in the hope of receiving an equivalent or higher performance in the event of a win. It is controversial when a “not insignificant” mission is given. However, the jurisprudence has recognized that a fee of EUR 0.50 is harmless under gaming law, i.e. permissible.

Conditions of participation for competitions

As mentioned at the beginning, the organizer of competitions or competitions is obliged to provide conditions of participation in a clear and unambiguous manner. These Information requirements result from Section 6 Paragraph 1 No. 4 TMG.

In addition, this information is also used as a "essential" within the meaning of Section 5a (2) UWG, which means that failure to provide conditions of participation is unfair within the meaning of competition law.

The conditions of participation must "Clear and unambiguous" specified, whereby it depends on the form and the content of the information. The people addressed by the competition must be able to grasp them without difficulty, with this consideration being dependent on the average informed, attentive and understanding consumer or other market participant. For example, if information is given in the “small print”, this must be addressed at least with an unmistakable note (“asterisk”).

What should the competition terms and conditions regulate?

When organizing a contest or competition, it is necessary to comply with the statutory information requirements during implementation in order not to run the risk of warnings from competition law. The fairness regulations require the clear and unambiguous specification of competition conditions!

Conditions of participation must always contain specific information about the scope of the scope of the respective game and in particular include the following information:

  • Designation / name of the organizer
  • Eligibility to participate (if restrictions apply)
  • Start and end of the competition
  • precise description of the profit (including any additional costs)
  • Date of the prize drawing
  • Rules according to which the winners are determined (randomness, jury)
  • Method of distribution of profits (collection, shipping, etc.)
  • Data protection notice

Tip: You can read more information about the organization of competitions in our article A real win for you: IT law firm secures your (online) competitions with secure conditions of participation!

Competition vs. data protection

Due to the fact that personal data is inevitably collected and processed when conducting competitions, data protection requirements must also be kept in mind. To that Data minimization principle According to Art. 5 Para. 1 lit.

Furthermore, due to the principle of purpose limitation, previously collected data may only be processed for the previously specified purpose - namely solely for the implementation of the competition.

Do you need competition participation conditions?

The IT law firm will be happy to provide you with the terms and conditions for participation in the competition! All you have to do is answer a few questions and you will receive suitable conditions of participation for your competition within a very short time!

Special data protection problem: the so-called coupling ban

Another peculiarity that has to be considered is that so-called coupling ban according to Art. 7 Para. 4 GDPR. If the consumer only has the choice of receiving goods / services in exchange for disclosing his own data, the consent should not be considered as "voluntary" in the sense of Art. 4 No. 11 GDPR apply if the data is not required for the close of business.

The background to this regulation is that consumers are often "lured" by goods / services and consequently agree to all data processing - even if this is not a must for the contract to be fulfilled.

However, this does not mean that participation in competitions may not be linked to a newsletter registration, for example. One possible solution is to “decouple” the processes. This can be done by "decoupling" participation in the competition and the query of data for advertising purposes.

This is achieved by first signing the contract for the competition between the organizer and the participant. Only then is consent to the advertising obtained. The two processes (participation in the competition and advertising consent) are thus decoupled from each other.

Another possibility is to process the data (with regard to advertising) yourself for Subject of the mutual contract to make between organizer and participant.

This can be implemented as follows: The organizer openly communicates that the data processing with regard to the receipt of the advertising as compensation is directly related to the performance of the person responsible. The participant provides his data in return for participating in the competition. The offer therefore does not appear to be "free" for the participant, but is presented as an exchange of data for performance.

You can find more information about organizing competitions on Facebook and Instagram in this Contribution read it!

Conclusion

Sweepstakes are still a popular marketing tool for online retailers and manufacturers. In order to make a competition legally secure, secure competition participation conditions should be used. In particular, data protection should be given particular attention when drawing up the conditions for participation in the competition.

In the course of the widespread "free culture" (receipt of free services against consent in data processing), data protection aspects in particular must be kept in mind.

In such scenarios - as is regularly the case with competitions - the consent of the participant is not required for the performance of the contract. In order to overcome this hurdle under data protection law, either "decoupling" or open communication of the data processing as a consideration for the free service is available.

You want professionally created Competition conditions of participation use? Right this way!

tip: Do you have any questions about the contribution? Feel free to discuss this with us in the entrepreneur group of the IT law firm on Facebook.