March 16, 2021

The Legal Risks That Social Media Influencers Encounter

By Timothy Shields, Esquire

Being a social media influencer has tremendous appeal. There are endless opportunities available and the idea of thousands or even millions of ‘followers’ can be a powerful motivator to grow your online presence. While these benefits may be exciting, there are also challenges associated with it. As a social media influencer, one may encounter several legal risks and concerns.

When you are the brand, a personal issue can become very public! Because of this, it is crucial that you take the necessary steps to familiarize yourself with the relevant laws and regulations concerning the use of social media and other online platforms. Take note that one single post may have a negative implication and can be an actionable wrong. As a result, the offended party can have a cause of action to file a case against you. Below are some common legal risks that influencers may encounter. As always consult legal counsel for advice concerning your specific situation.

Possible Infringement with the FTC Strict Regulations

The Federal Trade Commission (FTC) enforces strict guidelines on endorsements and online ads. For one, FTC regulations state that all web-based advertising should be truthful and not misleading. Also, influencers should validate claims. A common issue is someone endorsing a product they have never used.

Thus, when an influencer works with brands to promote and endorse products, they must obey FTC laws. They must also take it upon themselves to disclose their relationship with a brand. Complying with the FTC’s Rules and Regulations ensures the integrity of influencers and serves as a safety against deceptive advertising.

Otherwise, they may be facing penalties and sanctions from the Commission for any violation of the FTC regulations. In addition, an FTC violation can result in sanctions from State offices and cause a social media platform to block posts.

Violations of Intellectual Property, Copyright, and Trademark Laws

Posting content owned by somebody may violate another person’s intellectual property, copyright, and trademark rights. For example, an influencer may post a video not thinking about the music they have playing in the background. This can result in the post being muted or removed.

Despite not intending to violate the law, an influencer may face legal consequences if they are found violating IP laws on social media. One may be made liable for monetary damages in an infringement case, which can go as high as $75,000.00 per infringement, or even a court order to remove or stop posting violating content. Often platforms will not allow monetization of infringing posts resulting in a loss of income.

In case of injunction orders, the influencer may be required to stop the infringing act. Sometimes, the influencer may be required to turn over or close down their website or social media account or even shut down their whole online activity. In any case, the measure of encroachment is a factor in the outcome of any infringement case.

Violation of Publicity Rights

An individual can sue an influencer for a violation of intellectual property rights if she utilizes a photo of somebody for business use without permission. This infringing act is a great deal with posts that happen “in the city” with many spectators.

Notwithstanding a potential copyright claim over the utilization of such photos, there is also a threat that these photos’ owners may raise a right of publicity claim.

As a rule of thumb, influencers ought not to utilize the picture, name, resemblance, or even statements from a VIP to advance their business or brand via web-based media. Regardless of whether an influencer has the authorization to utilize a photograph, the photograph additionally should be used in the setting in which the individual trusted the influencer would utilize it.

Further, suppose a promotion passes on something tricky or adverse that insults or humiliates the individual. In that case, an influencer could be sued for depicting the person in question in a false light.

Privacy Issues

When an influencer through social media platforms utilizes an online platform for promotion, they should be aware of sharing data that incorporates any reference to another private person or business.

Posting without that individual’s consent could be viewed as a privacy violation. A person with a large following could expose someone to undue harassment if they identify a person or business in a negative light.

Takeaway

Numerous online media influencers create niches and select a couple of social media accounts for their core interest. The nature of social media platforms like Facebook, Instagram, Twitter, TikTok, and many more demands that influencers consider the legal issues that could emerge during the different phases of their engagement. As such, it is best to be aware of relevant social media and privacy laws applicable to the situation. Anyone looking to pursue a large social media presence should engage the services of a social media attorney to manage to the legal risks.

Timothy Shields
Partner, Data Privacy, Technology, & Social Media
Kelley Kronenberg-Fort Lauderdale, FL.
(954) 370-9970
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DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.