Since Guido Mantega published Ministry of Finance Ordinance 422/13 (see here), those working with social media have been apprehensive. Questions like "Has the government banned cultural contests?" or "Do I need to request authorization from Caixa to promote them?" are popping up in social media forums. In order to clarify these doubts, Adnews spoke with Isabela Guimarães Del Monde, a lawyer specializing in Digital Marketing and partner at the law firm Patricia Peck Pinheiro Advogados.
First, it's important to clarify that the government hasn't banned cultural contests. What has happened is that, to be considered one, the initiative needs to meet certain criteria. The Ministry's decree seeks to clarify which practices disqualify a contest from being considered a cultural contest.
Original article here: http://www.adnews.com.br/internet/concursos-culturais-nas-redes-sociais
“Cultural contests have always been exempt from the obligation to request authorization because, since the objective of these contests is to encourage culture, art, leisure, etc., the legislator chose to exempt them from authorization. However, over time, many contests that call themselves cultural contests were actually commercial promotions that should have been authorized, and since they were not, there was a violation of Law 5.768/71,” explains the lawyer.
According to Isabela, the Ministry of Finance's objective is to encourage companies to carry out authorized commercial promotions and also to demand faster and more efficient action from the authorization bodies (SEAE and CEPCO) throughout the authorization process.
But what are the main controversies surrounding the Ordinance?
Some of the provisions were already being followed by those promoting the contests, such as the separation from chance or payment. What is causing a stir are some of the new characteristics defined. See:
– Prohibition of the use of social media to hold cultural contests (they can only be used as a means of promotion);
– Prohibition of linking the cultural contest to commemorative dates;
– Prohibition on giving away the Promoter's products and services as prizes;
– Prohibition of requesting the participant's consent to receive communication messages from the Promoter – it was already prohibited to create a database with participants' information in cultural contests (data should only be used to identify and locate participants), but now it is also prohibited to request their consent to receive marketing communications that do not involve the contest.
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The first point causes quite a bit of discussion. Facebook itself is concerned about promotions. There are specific rules (see here) for creating such actions. Did you know that using Facebook's features or functionalities, such as the Like button, as a voting mechanism for a promotion is prohibited? That's right.
Regarding what the government calls "social networks," Isabela says the following: there is a definition in Ordinance 38/2012, issued by the National Defense Council, which establishes the Guidelines for the safe use of social networks in the Federal Public Administration (APF), defining them as "digital social structures composed of people or organizations connected by one or more types of relationships, who share common values and objectives.".
“However, this Ordinance only applies to the Federal Public Administration, but we can apply this definition of social networks and be aware that public bodies know that Facebook, Twitter, Instagram, Pinterest, YouTube, Google+, etc. are social networks,” says the lawyer.
But what if the social media manager realizes that the company's action doesn't fit the specifications of a cultural contest? In that case, they should request regularization from SEAE (Secretariat for Economic Monitoring of the Ministry of Finance) if the client is a financial institution, and from CEPCO (National Center for Commercial Promotions of CAIXA) for companies in other sectors.
But note: the request must be filed at least 40 days before the start of the promotion, and the agency can, by law, take a maximum of 60 days to authorize it. "In reality, they take much less time, on average 15 to 20 days to authorize if everything is correct. If not, the agency will request changes during the analysis," explains Isabela.
If you want to launch the promotion even if you disregard the rules, be aware that the penalties for cultural contests that are no longer considered as such, that is, that have any of the prohibitions of Ordinance 422/13, are the application of a fine of up to 100% of the value of the prizes promised in the contest and/or the prohibition of carrying out commercial promotions for up to 2 years.
What happened with Ordinance 422 is simpler than it seems: is its purpose a cultural contest or a commercial promotion? Answer this question to find out how to proceed.
Obviously, you can still run promotions that don't meet government standards, just as you can use your cell phone while driving. It will be at your own risk.
