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The rise and impact of influencers: Revealing the power and pitfalls of digital influence

03 August 2023

Gain insight into the complex legal considerations faced by influencers, including disclosure requirements, false advertising, and intellectual property. Discover practical strategies for compliance and explore the evolving regulatory landscape in the influencer industry.

In today's digital landscape, social media influencers have become powerful figures with the ability to sway opinions, shape behaviours, and influence purchasing decisions. The rise of influencers has brought about legal challenges that need to be addressed to protect consumers and maintain ethical standards in the influencer industry. This article explores the various legal considerations and regulatory frameworks that influencers must navigate to ensure compliance.

The role of influencers

Social media influencers create content and engage with their followers on various platforms, building a loyal audience through their expertise, personality, or unique perspective. They often collaborate with brands, promoting products or services, and engage in sponsored content partnerships. The success of an influencer is measured by the size and engagement of their following, as well as the impact they have on their audience's behaviour and perceptions.

Legal considerations for influencers

Disclosure and transparency: Influencers are required to disclose their relationships with brands and sponsored content to ensure transparency. Failure to disclose such partnerships may violate regulations and guidelines set by regulatory bodies such as Ofcom, Advertising Standards Authority (ASA), and Competition and Markets Authority (CMA). Adequate disclosure is essential to maintain trust and prevent misleading advertising practices.

False advertising: Influencers must avoid deceptive practices and false claims about products or services they promote. Violations in this area can lead to legal action under regulations such as Ofcom, ASA, and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).

Offensive or harmful content: Influencers are expected to adhere to community guidelines and terms of service of the platforms they use. Posting offensive, discriminatory, illegal, or harmful content can have legal implications and may violate regulations set by the respective platform.

Endorsement and sponsorship agreements: Influencers should carefully review and negotiate endorsement and sponsorship agreements to protect their rights and ensure compliance with relevant laws. Contractual disputes may arise, and influencers must understand their legal obligations and responsibilities.

Defamation and online harassment: Influencers need to be cautious about making false statements or engaging in online harassment, as these actions can result in legal consequences.Legislation in the UK and Ireland addresses these issues in both civil and criminal law.

Unfair competition: Influencers should avoid unfair competition practices, such as buying followers or engagement, as well as engaging in fraudulent activities to gain an advantage over others. Such practices can lead to legal disputes and damage the influencer's reputation.

Intellectual property infringement: Influencers must respect intellectual property rights and avoid using copyrighted material without permission. Unauthorised use of copyrighted materials can result in legal disputes and potential liability for the influencer.

Privacy and data protection: Influencers must comply with applicable data protection laws, such as the General Data Protection Regulation (GDPR) in the European Union. They should handle personal data responsibly and ensure lawful collection, use, and disclosure of personal information.

Regulatory approaches and strategies

Regulating influencers and social media is an ongoing challenge. Different jurisdictions have taken various approaches to address the issues associated with the influencer industry. Here are some strategies that can assist in ensuring compliance and accountability:

  • Clear guidelines and disclosure requirements: Regulatory bodies and platforms should establish transparent and comprehensive guidelines for influencers. Clear rules regarding disclosures, sponsored content, endorsements, and other relevant aspects can help influencers understand their responsibilities.
  • Verification and registration: Implement a system where influencers are required to register and verify their accounts. This can help ensure that only legitimate influencers are operating within the established rules.
  • Collaboration with social media platforms: Work closely with social media platforms to enforce rules effectively. Platforms can play a crucial role by implementing features that facilitate compliance, such as disclosure. Platforms like Instagram and YouTube have their own policies and guidelines for influencers, including disclosure requirements and rules against misleading practices.

Whilst jurisdictions have made efforts to regulate influencers, it is important to recognise that social media platforms operate globally, and influencer marketing often crosses borders. The decentralised nature of social media and the rapid evolution of new tactics and practices make it challenging to enforce regulations consistently.

If you wish to seek further advice on any of the issues discussed please contact our author Olivia O'Kane below.

Our Technology, Media and Communications team in Belfast and Dublin can be contacted through Olivia O'Kane, Partner.

Further Reading