By: Jessica Bonsu
Being a successful influencer is fun and easy compared to most other jobs. However, the road to the top has many obstacles. An influencer is someone who is able to sway the decision of potential purchasers. Influencers could be a celebrity, athlete, prominent society figure, or in some cases a fictional character. Today, in the era of social media the definition of an influencer has slightly evolved—since there is now a platform to share and quantify “influence.” Today anyone who has any sort of large following on social media can self-proclaim themselves an influencer. For instance, an influencer with a following of 50,000 to 100,000 could earn anywhere between $250 to $10,000 for a post. One massive social media platform used for “influencing” is Instagram.
Being an Instagram influencer, has become a real job to many people around the world. For them social media has turned from just a hobby to a fulfilling career. This career requires a lot of dedication, effort, hard work, knowledge, and business strategies. Though, it is a fun job with many opportunities such as, travelling and receiving free products. It also comes with contracts, and lawsuits. The contracts that these influencers enter into leave them on the hook for many issues.
Many influencers agree to showcase a product on their feed in exchange for money—this is a new model of advertising. This advertisement, however, is directly targeting their followers. Part of the influencers job is to make the picture not look like an ad. The post should be nice enough to sell the product, while also looking authentic and un-staged. Also, it is important that the online post or reviews on social media do not appear to be misconstrued as endorsements. When an influencer enters a contract, they are legally bound to fulfill certain terms or face the consequences. Some influencers have unfortunately fell into the latter part and faced massive lawsuits.
The Federal Trade Commission (“FTC”) has imposed strict regulations on product endorsement and online advertising. According to the FTC, all online advertising must tell the truth and not mislead customers. Additionally, all advertising claims must be substantiated. Influencers must comply with FTC laws when they are working with brands to promote products. It is the influencer’s responsibility on social media to make sure that full disclosure of their relationship to a brand is made. Influencers also have to be familiar with the FTC’s Endorsement Guides and with the FTC’s Rules and Regulations against deceptive advertising. This is usually difficult to follow because most influencers are not told about this— rather they must conduct research and find out on their own.
Social media influencers also have to censor their speech slightly to properly follow the guidelines of the website they are using. Although, 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. There have been many legal arguments to challenge the extent of which social media can censor an influencer’s speech, however, most of the arguments have been unsuccessful.
Influencers can also be sued for misappropriation, if they use a photograph of someone for commercial use without consent. Commercial use is when someone’s name or image is used to sell or endorse a product of service. Most influencers do not have written consent in the form of a release to use someone’s name or image and can be sued for being in violation if they do so. This is a potential copyright claim over the use of a photo.
The rule of thumb is that influencers should not use the image, name, likeness or even quotes form a celebrity to promote their business or brand on social media. Some influencers may have the permission to use a photo, but that photo must be used in the context in which the person believed it would be used. For example, if the photo is used to promote something deceptive or negative that offends the person, the influencer could be sued for portraying the person in a false light.
“A day in the life” of an influencer may seem like it is basically just taking aesthetically appealing photos and posting them online. Rather, taking photos is a small part of the job. Influencers must make sure they are constantly following the rules and regulations implemented by the FTC and fulfilling their contracts with the brands they are promoting.
Student Bio: Jessica Bonsu is a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Jessica received a Bachelor of Arts Degree in Political Science from Stockton University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
