Social Media Influencers – What is their legal standing?

Social Media Influencer

In the age of social media, most businesses use social media influencers to help promote their products or services. A social media influencer is someone with credibility in a particular industry and usually has a lot of followers on their social media platforms.

A social media influencer has access to a large audience and can persuade others through their authenticity and reach. Businesses would engage the services of a social media influencer, to promote their brand on their social media. This allows the business to market directly to its target market. The social media influencer would be remunerated in either cash or in kind. However, consumers can never be sure whether these are paid for promotion and not just the person’s opinion of the product. There is potential to deceive consumers.

At present, no official rules govern this form of advertising in South Africa. In the United States, the Federal Trade Commission has published detailed guidelines which require social media influencers to disclose in a clear and conspicuous manner any material connection with an advertiser.

This is why you will often see celebrities such as Kim Kardashian using hashtags such as #ad or #advertisement in posts where they are endorsing a product.

The Advertising Standards Authority of South Africa’s (hereinafter “ASA”) Code of Advertising Practice and the Consumer Protection Act 68 of 2008 (hereinafter “the CPA”) deal with standards relating to the advertising of products and services to the public to ensure consumers are not misled.

The CPA requires the advertiser to ensure that no misrepresentation is made about their product or service. Not disclosing that a post is an advertisement or paid promotion could amount to misrepresentation. The terms “advertisement” and “advertising” are defined broadly in the ASA Code of Advertising Practice but would include social media. When social media influencers post about a brand, they are advertising and should be compliant with the ASA Code of Advertising Practice and the CPA.

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