Influencers, it's time to sit up and pay attention. Your influencer marketing mistakes could see you land in hot water and having your Instagram account banned could be the least of your worries.
A Turkish 23-year-old may face jail time after posting racy Only Fans photos on Instagram. She was already serving a suspended sentence of five months after posting lewd photos while on holiday in Amsterdam last year. In Turkey, there are laws surrounding the publishing of obscene content that can attract a jail term of up to three years. Set to appear in court on January 12, 2003, the influencer tweeted, “If I go to jail on January 12, those who use social media can say goodbye to their freedom because of course, your sharing will be considered an obscene crime in our country (because it's an open-ended subject) and you will be judged like me."
We’re taking a closer look at the social media mistakes influencers can inadvertently make and how to avoid them. If you’re a beginner influencer, you may find it helpful to read our Dummies Guide on Crushing it on IG.
Influencer Marketing Mistake 1: Posting overtly sexualised content.
In Australia, you may not be arrested and destined for a life behind bars for suggestive photos, but it can filter into other aspects of your life and prevent you from securing influencer campaigns for brands that pride themselves on high morals and ethics. If bringing sexy back is your niche, and Britney Spears-style bath shots or getting your gear off is your gig, that’s fine! You do you! Just be aware of the social media regulations in your country.
Influencer Marketing Mistake 2: Spruiking false claims about health products.
What you say about health products and medical devices matters. The Therapeutic Goods Association (TGA) is cracking down on social media influencers in an attempt to manage misinformation. As of 1 July 2022, influencers were required to understand the difference between an endorsement and a testimonial. You can certainly endorse a product. For example; this supplement may aid weight loss, but you can’t provide a personal testimonial. For example; this supplement helped me lose 10kg and my cellulite completely disappeared in 24 hours. Even if you are speaking from your own personal experience, the TGA guidelines can be applied to retrospective posts, as well as future posts.
Last month the TGA issued a warning about promoting Melanotan-II, a widely-used substance. The drug is being touted as a product that can give its users a tan, but it is also associated with serious health risks. The TGA is targeting social media influencers and warning of big fines for people who continue to promote dangerous health products. Also on the TGA watchlist is a crackdown on Ozempic, a prescription-only medicine that cannot be advertised to the public. Advertising Ozempic to the public can result in jail time and penalties of up to $1.11 million for individuals and $11.1 million for corporations.
The law covers a full spectrum of products including prescription medicines, gym supplements, sunscreens, vitamins and minerals. You can read more about the Therapeutic Goods Act here. Even if you are going through an influencer agency, it pays to know what you’re allowed to say and what you’re not!
Case Study:
Back in 2015, Kim Kardashian partnered with a morning sickness drug which immediately caught the attention of the U.S Food and Drug Association (FDA). She was given an ultimatum—amend the post to accurately reflect the risks or remove the content to avoid facing action. She chose to repost the content with amendments. Since 2015 there have been significant changes and crackdowns to influencer marketing.
Influencer Marketing Mistake 3: Providing fake testimonials
When hired for influencer marketing, you’re doing your audience a disservice if you provide fake testimonials. Not to mention it could legally land you in hot water. Promoting products you haven't used or don’t like can destroy the trust your social media followers have in you, including having legal ramifications. The ACCC recently announced monitoring social media advertising would be a major focus, including the compliance of industry codes and scrutiny of influencer marketing.
Influencer Marketing Mistake 4: Using photographs you don’t own or have permission to use.
Using photos you don’t have permission to use could result in your Instagram account being temporarily suspended or banned. While a photographer’s work is protected under the copyright laws, who really owns the rights to the picture if you hired the photographer?
Case study:
In 2019, A Gold Coast influencer used real estate photography to promote a listing for sale. While the real estate agent assured the influencer she had permission to use the photos, the photographer reported the posts to Instagram. Due to a previous copyright warning and temporary account suspension, the influencer’s account was permanently banned despite an appeal, losing 20,000 followers into the Instagram abyss.Despite tools to be able to reshare user-generated content (UGC), the safest practice is to take the photograph yourself and post it. Even UGC can expose an influencer and business to breaching copyright laws. While most followers are happy for you to reshare their content, it’s advisable to obtain the correct licences/permission to avoid violating privacy rights. Even if you give credit to the photographer or modified the image, you are breaching copyright laws.
Influencer Marketing Mistake 5: Failing to disclose you are posting a sponsored or paid post.
The Australian Consumer Law decrees advertising must not mislead or deceive consumers. As an influencer, you have a legal responsibility to be transparent if you are being paid or receive contra gifts to post. If an influencer fails to divulge that content on their Instagram feed is an ad or a sponsored post, it may be seen as an attempt to intentionally deceptive conduct. If you are found to breach these guidelines, you may be liable to pay a significant fine. Brands using influencers that don't make sure commercial or advertising deals are clearly disclosed could face legal action from the competition watchdog – with fines of up to $500,000 for individuals or millions for corporations.
It pays to familiarise yourself with the paid partnership feature. If you are new to influencer marketing and worried about the legal ramifications, joining an agency like The Right Fit can help you navigate the complex regulations.
Make Influencer Marketing Mistakes a thing of the past!
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