We all want to influence and be known for giving excellent brand advice, but with this advice comes great responsibility.
Over the years, we have seen a shift in influencing, whereby influencers are forced to disclose that they have been paid to promote products. This was after many consumers felt influencers were misrepresenting their content online.
Consumer Protection Act 68 of 2008
The Consumer Protection Act (CPA) defines Advertisement as:
“Any direct or indirect visual or oral communication transmitted by any medium, or any representation or reference written, inscribed, recorded, encoded upon or embedded within any medium, by means of which a person seeks to
- bring to the attention of all or part of the public –
(i) the existence or identity of a supplier; or
(ii) the existence, nature, availability, properties, advantages or uses of any goods or services that are available for supply, or the conditions on, or prices at, which any goods or services are available for supply;
(b) promote the supply of any goods or services; or
(c) promote any cause;”
As noted with the definition above, sponsored content is considered as advertising according to the CPA, And influencers have a duty to disclose that they are being sponsored to do such.
Section 41 of the Consumer Protection Act
Section 41 of the CPA says the following:
(1) In relation to the marketing of any goods or services, the supplier must not, by words or conduct-
(a) directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer;
(b) use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception; or
(c) fail to correct an apparent misapprehension on the part of a consumer, amounting to a false, misleading or deceptive representation, or permit or require any other person to do so on behalf of the supplier.
(2) A person acting on behalf of a supplier of any goods or services must not— (a) falsely represent that the person has any sponsorship, approval or affiliation;
Section 41 discloses that a supplier must not fail to correct an apparent misrepresentation on the part of the consumer. Therefore when an influencer fails to disclose that the content posted is sponsored, they can be held legally liable for such non-disclosure.
Recently this came into question with the “Hello Darling” saga in which a travel agent allegedly “ran away” with consumers’ money promising them luxury holidays in the Maldives at half the going rate. Social Media Influencers were taken to task for allegedly promoting these fraudulent holiday packages, and it was further alleged it was part of a Ponzi scheme.
Paid Partnership Disclosures
Instagram, known as the App for showcasing the glamorous side of life, came down hard on brand influencers by forcing them to disclose their sponsored content. Instagram did so by adding the Paid Partnership feature, which allows users to see whether the content is sponsored or not.
Influencers played a massive role in marketing the infamous scam of the Bahamas Fyre Festival in 2017, with many high-profile personalities, such as Kendel Jenner, being paid hundreds of thousands of dollars to promote it on social media. The primary debate that came after this was the legal implications of influencers, which saw Kendel Jenner having to pay a considerable settlement fee for her promotional posts.
Get It In Writing.
So if you want to enter the space of being a brand influencer or you already are an influencer. My advice would be to get everything in writing. Then, when working with new or old brands, make sure you have a decent contract that covers you well.
It is so easy to download and use a contract found online, but you need to ensure it is a contract that protects you in your own country. And that it is specific and tailored to your needs.
Influencer Advertising Agreements, Why It Is Important To Have A Contract
A contract will set out the terms of the relationship, including the payment details, and tackle issues such as copyright and it will also cover you in the event of an error on posts or a late publication.
You would almost certainly want a comprehensive influencer or brand ambassador agreement in place, not just a copy-paste agreement but one tailored to the circumstances and the specific transaction; an agreement that covers your exclusivity, intellectual property, payments instructions, and potential breach of contract. Furthermore, the contract should include terms regarding the quality, tone, and frequency of posts. Some may also include the metrics used to define the success of a post.
By doing the above, you not only protect yourself but also your personal brand, which you have worked hard to create.
Conclusion
In conclusion, with most things we do online, everything has implications. Therefore, ensure that you are covered when creating content online.
Contact an attorney at SchoemanLaw Inc for your advertising/influencing contract law needs!
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