Over the last few weeks, I have taken a look at a few areas of the law that apply to social media use, and particularly influencers. Given the recent social media fitness influencer scam, I thought this would be a fun series to do. I have talked about intellectual property law and how it applies as well as FTC rules and how the Government regulates social media use and marketing. Both of these areas have grown and developed due to the rise of the internet and social media and the next area of law is no different.
What are we talking about here?
What you say, and publish can matter when it comes to social media. I think a lot of people believe that social media is giving them a platform to say and post whatever they want about any topic they want. And while that is true to an extent, there are limits to what you can and cannot say on social media. I am not specifically talking about topics the platforms themselves regulate, but there are regulations on the freedom of speech everyone believes they have the right to express on their social media pages.
What are those limits and how do they apply to your social media use as an influencer or business and brand? Let’s take a quick look, shall we!
Defamation is the legal term used when someone writes or says something (libel/slander) that damages or ruins the reputation of someone or something (a business). As an influencer often, you are asked to give recommendations and reviews about certain products and services or as a consumer you may want to tell the world how you feel about something you used. But the caveat here is that these recommendations and reviews must be truthful and honest, and even when the truth is harsh, I would consider thinking twice before you hit record, send or post. To help you visualize when this might be an issue let’s go through a little fake scenario.
Let’s imagine that Felicia the Fitness influencer was given an opportunity to take a trip for a famous fitness expo being held in Las Vegas. A hotel reached out to her and told her she could have a room for free for the duration of her stay. Felicia arrives at the hotel and immediately checks out the gym which only contained one treadmill. She then orders room service before heading out for the expo. Unfortunately, the food arrived merely warm, and on her way to the expo Felicia’s wallet was stolen as she walked down the strip, and she was accosted by rude tourists. Felicia finally made it back to the hotel later that evening after what she would describe as a terrible day. Rather than call it a night and go to bed, she decided to take to Instagram to post about her horrid experience. Except she decided to bring the hotel into it. In the caption of her photo she states she got food poisoning from the mediocre hotel food, she tripped while on the hotel’s treadmill because it suddenly turned off while she was mid-run, and she says she was attacked right outside of the hotel and they did nothing about it. Her 500k + followers see this post and the hotel’s reputation is suddenly ruined. Multiple reservations were canceled and the hotel immediately lost business as a result of Felicia’s post.
This is what we would consider defamation. While some of what Felicia wrote about could be “true” she exaggerated quite a bit and unnecessarily blamed the hotel for her bad day thus causing damage to the hotel’s reputation and business.
When it comes to product and service reviews you need to be truthful. This applies to everyone, not just the influencer paid to talk about something. On the flip side of things, and I saw this a lot with the recent influencer scandal, you cannot blatantly lie or make things up about someone on social simply because you disagree with something they have done. That is an actionable offense.
The law allows you to tell the truth, even when it is bad. Your honest telling of a situation is, in fact, a defense to a defamation suit. But, as we see above stretching the truth won’t be much of a defense. And keep in mind, just because what you’re saying is true doesn’t mean that the bigger company or influencer or person wants you to make those statements about them to your followers. Even if it’s honest and true that doesn’t mean you won’t get hauled into court over your statements. While I am not suggesting you should be inauthentic with your followers or the things you post, I am suggesting you think your statements through before you make them.
Being an influencer at any level comes with quite a bit of responsibility. If you’ve made the leap from every day social media posting to legitimate business through your influence you need to stay apprised of the legal issues that exist around both your business and your position as an influencer. Defamation is just one of the issues to stay aware of. If you’re interested in other laws that apply to social media and influencers go back and read part 1 and 2 in the series!
If you have questions on anything you’ve read today or need help with something feel free to email me at Shannon@montgomerypllc.com.
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