Identifying and acting on fake advertorial content

Gowlessence: the insider view into the legal side of the influencer marketing industry

08 March 2019

The likes for Gowlessence's Self-Care Serum advertising campaign have been rolling in. As explored in a previous article - Influencer Law 101: legal considerations, Gowlessence is working with several high-profile influencers. The influencers were either paid or given products in exchange for creating content posted to social media featuring the #GowlessenceGlowUp hashtag, alongside the required #ad disclosure. Whilst Gowlessence encourages its followers to post content showing how they use the Self-Care Serum, it's noticed several posts on the #GowlessenceGlowUp hashtag page which are concerning. The posts look similar to the content that Gowlessence has paid its influencers to produce, and include #ad - except this content has been published without any involvement from Gowlessence.

Fake adverts

The brief provided to Gowlessence's influencers explained that the content should feature the influencer indulging in an act of self-care, whilst looking extra dewy and fresh - the result of the Self-Care Serum. The influencers were to wear clothing or accessories in melodramatic purple, so that the posts could be instantly recognisable as affiliated with Gowlessence. Gowlessence's own Instagram feed is filled with posts in purple hues as the colour is a key aspect of Gowlessence's branding.

The "fake" advertorial content (FakeVerts) feature individuals in similar settings to Gowlessence's influencers (that is, embracing the notion of self-care); the images are edited in the same way; contain hints of melodramatic purple; and the captions include #ad. The FakeVerts have been posted by nano-influencers, attempting to project the notion that their status is such that big brands like Gowlessence want to work with them. Viewers scrolling through their feeds interpret the content as being the result of the creator having an established relationship with Gowlessence.

Posting FakeVerts puzzles Gowlessence, as it had experienced somewhat of a battle to get its influencers to include the necessary #ad disclosure. Where the Gowlessence influencers didn't want to be seen as "selling out", the content creators behind the FakeVerts treat posting advertorial content as a symbol of success.

Gowlessence's problem

Initially, Gowlessence is grateful for the FakeVerts as they bring more eyeballs to the Self-Care Serum. However, this gratitude turns quickly to horror when it browses the nano-influencers' feeds - in particular, @influenZinger, a nano-influencer with several thousand followers. As discussed in a previous article, Gowlessence is hyper-sensitive about conducting due diligence on its influencers. Unfortunately @influenZinger is a PR disaster waiting to happen. @influenZinger's FakeVert is poorly Photoshopped and completely misses the campaign's "self-care, self-love" intention; the caption has unforgivable spelling mistakes and unsubstantiated claims about Self-Care Serum; and, generally, the content doesn't complement Gowlessence's "positive vibes only" message.

Most alarmingly, the FakeVert is posted seemingly on Gowlessence's behalf - but without its approval or control. @influenZinger's profile even features FakeVerts for Gowlessence's nemesis and competitor LawWow. This not only would not happen under Gowlessence's watch as it locks its influencers into ironclad exclusivity agreements, but a FakeVert for Gowlessence side-by-side with one for LawWow dilutes both brands' legitimate advertorial content.

Legal recourse

Advertorial regulatory bodies don't yet have rules preventing content creators from labelling posts as adverts when, in fact, such posts are not the result of any commercial relationship with a brand. Such content doesn't fall into the jurisdiction of advertising regulatory bodies, because they're not actually adverts. As a result, the availability of legal recourse depends on the situation.

@influenZinger's FakeVert could lead to a claim under the tort of deceit. In order to satisfy the test for this claim, Gowlessence would have to prove the following:

  1. @influenZinger made a representation which was false. @influenZinger posted the FakeVert, which, with the inclusion of #ad, created the false impression that Gowlessence and @influenZinger were connected.
  2. @influenZinger knew that this representation was false. @influenZinger knew that it didn't have commercial relationship with Gowlessence where @influenZinger was to post content in exchange for either being paid or receiving a gift.
  3. @infuenZinger had an intention to deceive, and it was acted upon. . @influenZinger intended to lead users into believing that its FakeVert was real advertorial content. The FakeVert's poor quality and off-brand messaging caused users, who were searching #GowlessenceGlowUp as they were inclined to purchase the Self-Care Serum, to rethink this. Subsequently, such viewers purchased from LawWow.
  4. Loss was suffered as a consequence. As a result of the FakeVert, Gowlessence suffered reputational damage, which, it believes, led to loss of sales.

Issues with the tort of deceit

Unfortunately, this wouldn't be a slam-dunk claim for Gowlessence. Enforcement would be complicated as @influenZinger's identity and location is unknown, so issuing a claim in the first place would be difficult (though, not impossible). However, before even getting to that problem, Gowlessence would struggle to prove loss or damage as a result of @influenZinger's deceit in posting the FakeVert. Gowlessence would have to provide actual evidence of viewers of the FakeVert who had fully intended to buy the Self-Care Serum but subsequently made a purchase from LawWow as they had been put-off by the FakeVert. Not only would such evidence would be tough for Gowlessence to provide, but the ensuing quantum of loss would be hard to calculate.

Gowlessence's solution

With reputational issues in mind, a claim under the tort of deceit isn't a viable option for Gowlessence. It doesn't want to bring further attention to the FakeVerts by putting them on blast, as this would harm its "Everyone is Welcome in the Gowlessence Gang" mantra. Instead, Gowlessence posts a story "introducing" its followers to its influencers, which is saved to its Instagram highlights. This is a friendly way of confirming which content creators Gowlessence is officially associated with. It also reiterates its encouragement for its followers using #GowlessenceGlowUp on their content to hopefully drown out the FakeVerts by pushing them further down the #GowlessenceGlowUp hashtag page. This mitigates the harmful effect of the FakeVerts. Finally, Gowlessence updates its influencer contracts to include a warranty from the influencer that they haven't ever engaged in posting FakeVerts to their social media, demonstrating Gowlessence's zero-tolerance and zero-patience for FakeVerts.

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