Being an influencer on social media presents legal risks.
Believe it or not, influencers on social media who neglect these legal concerns can result in misleading advertising, potential liability, and lawsuits for infringement, or censorship. By way of brief example, the character limitations for social media influencers on a platform like Twitter, along with the informal language often used on such platforms can lead to a literal “hotbed” of miscommunication and erroneous advertising or messages being communicated. Other unintended material misstatements or omissions might occur simply due to other aspects of social media that inhibit communication and the types of material influencers on social media can present to viewers. This opens the social media influencer up to liability.
So, let’s get into the specific legal issues.
1. Rules for Social Media Influencer Advertising and Endorsements
It is important to be aware that any online posts or reviews a social media influencer posts can potentially be misconstrued as endorsements.
The Federal Trade Commission (FTC) imposes strict regulations on product endorsements and online advertising. For example, per FTC regulations — all online advertising must tell the truth, not be misleading to customers, and all advertising claims must be substantiated. When an influencer works with brands to recommend or endorse products, then she MUST comply with the Federal Trade Commission (FTC) laws when making such recommendations.
It is the influencer’s responsibility on social media to make sure that full disclosure of her relationship to a brand is made. It is also her responsibility to be familiar with the FTC’s Endorsement Guides and to comply with the FTC’s Rules and Regulations against deceptive advertising. As a word of caution, it’s not sufficient to rely on others to do it and get it right. I think every influencer should take the initiative and learn and understand these rules. Conveniently, I have a guide for influencers on the subject.
Further, as an influencer online, it is imperative to continually monitor what people are saying about you online, and be ready to respond to any potential threats that could put you in legal jeopardy. Client or fan testimonials could lead to liability. Just because a fan shares positive feedback about an influencer or her business, that doesn’t mean she can reproduce it without permission. If an influencer wants to share comments, a rating, or any other feedback provided by a customer, she must get written consent before including it in any advertising.
2. Censorship of the Social Media Influencers’ Message
The reality: there isn’t much we can do about social media censorship of a social media influencer’s messages. Social media platforms like Facebook, Instagram, YouTube, or Twitter are able to create their own messages and dictate customer behavior.
Although the US Supreme Court has recognized that that social media sites are “important places” for people to “speak and listen” observing that “social media users employ these websites to engage in a wide array of protected First Amendment activity.” So, while an influencer has a First Amendment right to free speech, the social media sites have control over the message the influencers are trying to convey.
Thus, social media sites engage in a wide variety of activities, some of which entail hosting and creating constitutionally protected speech. In curating this content, social media sites may also edit user content, combine, or draft their own additions to that content. Through human curation and the use of algorithms, these platforms decide how content is displayed to other users.
Critically, however, social media sites also have content moderation policies under which they may remove certain content they don’t like or disagree with. It is here where you will experience another love/hate relationship with the various platforms. Some people have expressed concern that social media sites are not doing enough to counter violent or false speech. While, at the same time, many argue that the platforms are unfairly banning and restricting access to potentially valuable speech.
Under existing laws, lawsuits predicated on these sites’ decisions to host or remove content have been largely unsuccessful, facing at least two significant barriers under existing federal law. Specifically, the State Action Doctrine, and Section 230 of the Communications Decency Act. Courts have held that the First Amendment which provides protection against state action, is not implicated by the actions of these private companies. Second, courts have concluded that many non-constitutional claims are barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which provides immunity to providers of interactive computer services, including social media providers, both for certain decisions to host content created by others and for actions taken “voluntarily” and “in good faith” to restrict access to “objectionable” material.
Many legal arguments have been made challenging various social media sites restrictions on the content people have posted. All to no avail. It is unlikely that private social media companies will ever be viewed as a state actor. Further, Section 230 is going to continue to provide protections to social media platforms unless Congress makes the decision to change the law. Even then, however, Congress would be enacting a law restricting the First Amendment protections given to the social media platforms. So, Congress runs the risk of passing an unconstitutional law in an effort to regulate the messages being communicated.
In my representation of online influencers, I’ve seen considerable amounts of unequal enforcement of the policies and procedures these platforms have in place. There is no consistency in monitoring or in enforcement. Influencers’ messages are at the discretion of the monitoring staff at each of these platforms. There is no continuity and there is no guidance in how an influencer can navigate the arbitrary enforcement practices of social media platforms.
3. Intellectual Property, Copyright, and Trademark infringement by the Influencer Online
Furthermore, if a social media influencer makes any direct references to products or services offered by another company, this is known as branded content, and the influencer must obtain special permission in order to use another company’s name in her advertising or endorsements.
a. Intellectual Property
It’s important that an online influencer’s advertising doesn’t violate or obstruct someone else’s intellectual property rights. “Intellectual property” (IP) generally refers to laws concerning patents, copyrights, trademarks, and trade secrets.
Despite good intentions, an influencer might face stiff penalties if she is found liable for violating IP laws on social media. A plaintiff in an IP infringement case can ask the court for monetary damages, which can be as high as $75,000.00 per infringement or even a court order to remove or stop posting violating content.
An injunction may simply require an influencer to stop the infringing activity, but in some cases, it may also result in the influencer having to turn over her website domain, social media account, or even shut down her entire online operation. Obviously, the amount of infringement is a factor in the outcome of any case.
Copyright creates legal protection for “original works of authorship fixed in a tangible medium of expression.” Social media sites freely allow users to post content including photos, videos, and other digital files, which inevitably result in the illegal distribution of copyrighted material.
All of the following are examples of potential copyright infringement an influencer in social media could face:
- copying and pasting excerpts of content to “fill space” or simply restating something someone has already written
- playing music files in the background of videos
- copying and pasting images into your posts, or
- copying web design code to use on your own site
If an influencer on Instagram does not create the content she is sharing on social media, copyright laws likely prohibit her from using it without the owner’s consent.
A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of goods from one party to another. Therefore, either an influencer’s trademark must be inherently distinctive — meaning it identifies her company as the source of a product — or the trademark must have acquired distinctiveness, meaning that the public identifies the trademark with the influencer’s particular goods or services and that the influencer is the source of the product.
Trademark laws protect trademark owners from two types of infringement, including, the likelihood of confusion or dilution. To avoid infringing on the trademark rights of others, the influencer must avoid using trademarks in any manner that could cause consumer confusion about the source of goods or services (likelihood of confusion) or “dilute” or weaken, another company’s brand.
4. Online Influencer’s Violating Rights of Publicity
A person can sue an influencer for misappropriation of likeness if she uses a photograph of someone for commercial use without consent. You see this a lot with posts that occur “on the street” with bystanders. Commercial use is when someone’s name or image is used to sell or endorse a product or service. If an influencer doesn’t have written consent in the form of a release to use someone’s name or image, she could be sued for a violation of privacy. This is likely the case if the influencer has monetized her channel and is seeking “views” in an attempt to boost the post and make money.
In addition to a potential copyright claim over the use of a photo, there is a danger of using a celebrity or well-known person’s photo. These people could raise a right of publicity claim. The right of publicity is the right to use one’s name, likeness, or identity for a commercial purpose.
As a rule of thumb, influencers should not use the image, name, likeness, or even quotes from a celebrity to promote her business or brand on social media. Even if an influencer has permission to use a photo, the photo also must be used in the context in which the person believed it would be used. Furthermore, if an ad conveys something deceptive or negative that offends or embarrasses the person, an influencer could be sued for portraying him or her in a false light.
5. Social Media Influencer Privacy Concerns
If an influencer on social media uses an online platform for advertising, she needs to be mindful of how she shares information that includes any reference to a customer, client, or employee (assuming she has some).
Simply resharing an item on the influencer’s site online that a client, customer, or employee has put online without that person’s permission, could be considered a breach of privacy. An influencer’s clients and others who interact with the business online have certain expectations of privacy, and it’s important to be aware of the rules for sharing client information, or risk being faced with a potential lawsuit for breach of privacy.
BONUS: Proprietary Information of the Social Media Influencer
Disclosure of an influencer’s own confidential or proprietary information can lead to no longer protecting the confidentiality or proprietary nature of that information. The whole objective behind making information confidential and proprietary is that it requires legal protection. An influencer disseminating, or making such information public on social media, could chip away at the confidentiality and integrity of that information.
Get Help from a Business Law Professional
An experienced business law professional can help you navigate problematic situations should you be involved in violating these laws.
If you’re stuck or have questions about the laws that apply to Social Media Influencers or any other issue, don’t hesitate to call 303-780-7333 or schedule an appointment online.
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