When can influencers be held liable for products they promote?

BY STANLEY ALIEKE

Recently, a popular social media influencer who happens to be my client was engaged by a company to promote a product on his social media platforms. The company is into an online investment scheme where individuals are to invest and earn a particular percentage as a return on their investments within a particular time. The investment platform ended up being a Ponzi scheme: the platform subsequently crashed and the investors lost all their money. The owners of the platform, as expected, disappeared and are nowhere to be found.

Since the owners of the platform were on the run, the investors decided to hold my client responsible for their loss. They asked my client to refund them the money they lost which is several hundreds of millions — or that my client should provide them with the owners of the platform.

The investors claimed that they only signed up because my client, being a person they trusted, promoted the platform and gave his word that the platform is legit as he had invested and is cashing out.

In our defence, our client claimed that he is not responsible for their loss, that he was merely engaged by the company as an influencer to promote the product for them, a task which he executed and nothing more.

Scenarios like these keep playing out between advertisers/influencers/promoters and users — and the question has been; what is the culpability of an influencer or advertiser over a product he promoted which turns out to be a fake product or a scam or what extent is an advertiser or an influencer liable or culpable in an instance like this?

Rulings of the court have always been that advertisers or influencers are ultimately responsible for the content of the adverts they shared and promoted and they are liable or culpable for any damage such advert caused or will cause.

This rule notwithstanding, there are ways an influencer or an advertiser can limit his/her culpability or liability.

An advertiser, a media house or an influencer promoting a product on their platforms must use captions like; sponsored post, ad, branded post or paid partnerships, etc. This will serve as a caveat or a disclaimer to the general public that it is an advertisement, hence limiting your liabilities if the product you are advertising ends up failing or is a scam. Although these disclaiming captions won’t make you totally not guilty of the bad advertisement, they will limit how much responsible you are for the damages the content of your advertisement caused.

As an influencer, you should also not use the words like “I have used the product and it worked”, if you haven’t used the product as that will amount to lies and deception and you will be held culpable by a user who relied on your words. You must let your followers know how much you know about the products and if you have tested or used them or not.

You are therefore expected to do your due diligence on a product that you are contracted to influence or promote on your platform because no matter the caption you used as a caveat or disclaimer while promoting that product, it will not make you totally not guilty in the event of failure of the product.

If the product ends up being illegal or criminal, you can be held culpable for promoting criminal activities or being complicit in the commission of a crime or aiding and abetting the commission of the crime. This is why you are expected to do your due diligence before accepting to promote any product on your platform.

In summary, if you don’t want to be held totally responsible by the law as a complicit, as an advertiser, a promoter or an influencer, you are expected to use any of these captions; ad, sponsored post, promoted, branded post, paid partnership or their likes, and you are also expected not to lie or overtly bluff about the product to your followers.

You are not to use words that will overtly convince or persuade your followers or listeners. All you need is to put it out there, let your followers know that it is a branded post and let them make up their minds on if they would patronise the product or not.

Please note that no matter the procedure you follow or the disclaimer you put out, it does not slap all the liabilities off you but it limits how much liable you are in the event of the product failing or ending up being a fraud.

That is why you are expected to only promote and advertise products you trust and believe in.

Stan Alieke is a legal practitioner. He can be reached via [email protected]