The Rise of Influencer Hijacking

Earlier this year, a situation involving well-known influencer Pia Muehlenbeck arose where a ‘tea detox’ brand chose to leverage Ms Muehlenbeck’s influence by photoshopping their product into photos that Ms Muehlenbeck had uploaded onto her own social media channels, and then uploading the photoshopped photos to their own social media channels. The impression created by the posts was that Ms Muehlenbeck supported and used the brand’s products, which was not the case.

Not only had the brand allegedly used Ms Muehlenbeck’s intellectual property without obtaining her permission, they had completely altered her content to represent to their audience that Ms Muehlenbeck was endorsing and using their product. Understandably, Ms Muehlenbeck was concerned by this conduct and reached out for advice on Twitter. In our view, she could have also reached out for legal advice, as her rights were clearly infringed. Ms Muehlenbeck owned the copyright in the image, which was then scraped, altered and published without her permission, conduct that is a clear breach of copyright under Australian copyright laws.

Intellectual property and the question of copyright infringement aside, another significant issue to consider is how such conduct could be seen as misleading and deceptive conduct, breaching the ACL. Sections 18 and 29 of the ACL prohibit conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive, or that falsely represents a sponsorship, approval or affiliation with another party that does not exist. The maximum penalty for engaging in such conduct for a company is $1.1 million.

In our view, the tea detox brand’s conduct would be misleading or deceptive because reasonable members of Ms Muehlenbeck’s community would likely believe she was endorsing the brand or had some sort of affiliation or association with the brand. Ms Muehlenbeck’s outrage made it clear that no affiliation, association or endorsement existed, which was reinforced by the fact that the posts in question were brand posts, as opposed to an organic post by Ms Muehlenbeck.

In most instances, outright hijacking of an influencer’s goodwill, personality and content in the circumstances above would be a breach of the ACL and copyright.

Another issue to consider is that if the unauthorised use of the influencer’s goodwill, personality and content by a brand leads to the lowering of the influencer’s reputation in the eyes of reasonable members of the community, this could result in conduct amounting to defamation.

Takeaways

Given the viral effect of social media and the “capacity for proliferation of communications on social media and by internet publication” as noted in the case of Rebel Wilson v Bauer Media Pty Ltd [2017] VSC 521, this could result in significant damages payable by the hijacker due to the fact that “the defamatory sting might percolate through the internet and social media and contaminate other communications… negatively affecting the [defamed person’s] career”.

Accordingly, it is important for brands, agencies and community managers to only seek to leverage an influencer’s popularity with their community with the influencer’s permission, involving clearly established rules of engagement through, for example, a formal influencer contract.

Importantly, influencers themselves need to be vigilant in order to protect their personalities and influence, and just as Ms Muehlenbeck did, immediately correct the record through social media and look to other forms of remedy including legal avenues. Such vigilance helps to ensure that the influencer community remains fair and transparent for brands, agencies, consumers and the influencers themselves.

 

This article first appeared in Mumbrella


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