The Makana Swim fiasco is a reminder to pay attention to your T&Cs

As Aussie swimwear business Makana Swim sinks back into obscurity after it encouraged a 16-year-old competition winner to post bikini pictures online, Suki Harrison considers where the brand went wrong.

In the fast-paced online world, where giveaways and ‘just click now’ deals abound, it’s easy to get carried away with a great idea. When everyone’s doing it, how hard can it be? Well actually, very hard. Just ask Makana Swim.

When an Instagram competition went awry, the business owner vanished without contesting allegations made by the 16-year-old winner’s mother.

The social media explosion which ensued saw commenters driven into distinct camps and, with no apparent defence, the business sank without trace.

A promo image from the now-defunct company

In the blink of an eye the company’s PR nightmare moved from the suggestion of sleaze to that of a cover-up and all, I would suggest, for the want of some watertight T&Cs.

The loss of any business because of a highly preventable omission is a bitter pill to swallow.

Those magic words, ‘terms and conditions’, don’t exist just to send the reader to sleep, they’re there to cover your bikini-clad behind. If nothing else can be salvaged from this distressing episode, we should at the very least see it as a cautionary tale.

The top line is, nothing beats legal advice from qualified professionals because the last time I checked, “everybody does it” wasn’t a convincing defence and, when it’s a case of trial by social media, you can bet it won’t get you off the hook.

Beyond that, the main things you need to know about terms and conditions are that they protect you from your winners as much as they protect your winners from dodgy competitions. Harsh but true. Professional competitors do exist and they’re in it for the money.

You’ll know one instantly, because when you call to congratulate them, their first question will either be ‘which one is this again?!’ or ‘thanks, can I just have the money?’ (true story by the way). In which case you’ll refer straight to your “not redeemable for cash” clause.

In Makana Swim’s case, if they’d had clear T&Cs stating that the competition was only open to people over the age of 18, the issues of consent, appropriateness and parental involvement could have been avoided. Obviously if your competition is open to under 18s, you definitely need to chat with a lawyer to make sure you’re abiding by strict State and Federal laws designed to protect minors.

The 16-year-old winner received this letter with her bikini

What about overseas entrants? Fail to state that ‘this competition is open to Australian residents only’ and you could be posting a lifetime supply of a certain yeast-based product to the outer reaches of the Sahara.

The next thing is to make sure you’re crystal clear on what’s included (and therefore what isn’t included) in the prize. A ‘Win a trip to Europe!’ competition that delivers a day tour of Prague doesn’t exactly constitute a ‘trip to Europe’ and may be misleading to someone expecting flights and accommodation.

Stating your inclusions protects you from pushy winners trying to get more by leveraging gaps – it would also let bikini seekers know that they were in for a G-string rather than a rashie…

A solid set of T&Cs usually includes:

  • Who your competition is and isn’t open to
  • When your competition starts and ends
  • What your audience has to do to enter
  • How many entries they are allowed
  • Exactly what the prize includes (and doesn’t include)
  • When, how and where you will draw the winner
  • When and how the winner will be announced
  • How long the winner has to claim the prize
  • Any specific T&Cs relating to the redemption of the prize
  • Liability releases
  • Your contact details
  • The licence numbers for your competition.

Furthermore, if you’re running a game of chance, you may actually need to apply for permits. In doing so it’s a legal requirement to submit a copy of your T&Cs.

And, worth saying again – if in doubt, nothing beats professional legal advice. So, before you cause an international incident over a free lipgloss, do yourself a favour – take the T&C pain. It could mean the difference between the business that sinks, and the business that swims.

Suki Harrison is the founder of OrigamiGlobe, a competition platform.


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