I have the pleasure of working with multiple social media influencers. They typically hate that word, but for lack of a better term that is what we are going to use for this article. I think this is going to be the start of a series on what not to do as an influencer, or how to stay out of legal trouble as an influencer, or better yet, you probably should have listened to me in the first place as an influencer (just kidding about that one a little). The point is, the law applies to social media. It might be a newer medium but that doesn’t mean there aren’t laws surrounding its use. Yes, there are certain areas that still need to be developed like online bullying, seemingly odd censorship on particular platforms, and how individual platforms handle legal issues themselves. But for the most part laws exist to combat the issues I am going to touch on, and more laws are being developed as we speak.
So, what are the biggest legal issues I have seen since jumping into the influencer world a few years ago? Well to list a few we have…
• Intellectual property infringement and theft
• Federal Trade Commission (FTC) violations ranging from sponsored post issues to deceptive marketing tactics
• Defamation and other attacks on character
• Breach of contract
• Privacy issues
• And last but not least, fraud and other criminal issues
There are other legal issues that business owners who utilize social media must be aware of such as using social in the hiring process maintaining secure accounts, and of course, avoiding some of the above issues as well. But for purposes of this article and the next few, I want to focus specifically on the world of influencers and how they operate their businesses on social.
Intellectual Property (IP) problems
I could talk about these issues for months. The unfortunate part about social and is that a lot of people simply don’t understand how it works. Sometimes the copyright or trademark infringement/theft is accidental. But, a lot of the time it isn’t. I know that many of my client’s deal with this on a daily basis. There are plenty of people out there trying to make fake accounts so they can ride the coat tails of a particular influencer. Or, they “borrow” viral content from one influencer as a means for growing their own page. Or worse, they file fake trademark applications to try and steal popular Influencers accounts! The scary part about that one is Instagram is allowing it…but that is an article for another day. The point here is this, intellectual property can be confusing but there are some basic rules to follow and just because you are an influencer or want to be one, doesn’t mean they don’t apply. Don’t use a logo or brand name that isn’t yours, and don’t post content you didn’t create. Check back in the next few weeks for the article that elaborates on this point.
The FTC is in charge of protecting consumers. Their stated purpose is “Protecting consumers and competition by preventing anticompetitive, deceptive, and unfair business practices through law enforcement, advocacy, and education without unduly burdening legitimate business activity.”
When it comes to social the FTC works diligently to ensure advertising guidelines are followed by influencers, deceptive marketing tactics aren’t used, and the consuming public isn’t being tricked by influencers and brands to buy products or services. This area is constantly developing but there are some pretty poignant cases on the topic, and plenty we can discuss regarding the FTC and what influencers need to be doing, or not doing, so get ready for that!
Just because you can write it or say it doesn’t mean you should…
Alright, so that title needs some work. But, social media seems to have given everyone the mistaken belief that they can post/say/make a YouTube video about anything they want. That really isn’t the case. Defamation exists to keep people from saying or writing falsehoods about people and businesses. And you better believe that if you post something that causes damage to someone else or their business you’re not going to get away with it. Defamation is an interesting topic and most say it can be difficult to prove but I am not going to let that stop me from discussing it. I think it is important enough for influencers and social media users to gain an understanding of, and hopefully, we can avoid any issues moving forward.
Your Actions may lead to more than just money judgments
There are certain actions on social media that can be criminally prosecuted. What does that mean? It means that perpetrate a big enough fraud (Fyre fest anyone?) and you can land yourself in a cozy jail cell for longer than I am sure you’d like. So, while it may be tempting to monetize your influence doing so too quickly can have huge consequences. It’s important to understand what crimes are implicated via social media use so you don’t, you know “accidentally” participate in one. I don’t think my “business grew too fast” is much of a defense to fraud.
Over the course of the next few weeks, I am going to work through the above issues and shed some light on the important legal things to think about when operating your social media as an influencer. I hope this will help current influencers, soon to be influencers, and those of us that consume their content and products understand how to properly exist on the internet, and stay out of legal trouble. So, get ready turn your notifications on…just kidding you can’t do that…follow me on Instagram @montgomerylawpllc or @liftinglawyer to get updates on new posts or sign up for my email list and I’ll send out an update each time a new article goes live. And as always, if you have questions about anything you just read or you’re interested in working with me shoot an email over to firstname.lastname@example.org and let’s chat.
Please note that this is not meant to be legal advice for you or your situation, this is merely some legal research and knowledge on the given topic.