News & Insights

Influencer marketing is the wild west of marketing: it’s –

• largely unregulated;
• lacks a clear set of best practices;
• if done well, leaves consumers not aware they’re looking at influencer marketing content on their favourite social media platforms; and
• poses risks of which businesses should be aware.

What Is Influencer Marketing?

Influencer marketing is the practice of paying someone “popular” to put a message or product in front of their audience (“followers”) e.g. the ‘girl next door’ with 1 million followers on Instagram.

While influencer marketing isn’t new, it’s receiving renewed attention because of the rise of a new breed of public figures: the social media celebrity. The most common example of influencer marketing today is when a business sends a social media celebrity a product either in exchange for or just in the hope, that the social media celebrity will post a picture or comment about their product.

#INSTAFAME or #INSTASHAME

Unfamiliar marketing and communications techniques can be fraught with danger for businesses: It’s not uncommon for social media celebrities to accept products and ultimately not promote them; or worse still, promote the products in a way that causes reputational damage to the brand.

#girlsmakeyourmove

The Australian Government’s Department of Health and Health Minister Greg Hunt recently came under fire for an influencer marketing campaign gone awry. Various social media celebrities were paid A$600,000 for using the hashtag #girlsmakeyourmove to encourage women to become more physically active.

What was evident was that the Government hadn’t properly vetted its influencers. Instead, its influencers included women who had previously –

• promoted alcoholic beverages; and/or
• made controversial statements concerning race and sexuality that were contrary to the views of the Government.

This weakened the credibility of the Government’s message and damaged the Department of Health’s reputation as a trusted authority.

The Government had put the Department of Health’s reputation in the hands of a social media celebrity. Businesses do this daily without considering the very real risk of failure.

Self-Regulation or Legislative Control?

In the absence of any real legislative control, the Australian Association of National Advertisers (AANA) decided self-regulation was required and in 2017 introduced a provision in its Code of Ethics which explicitly addresses influencer marketing campaigns.

It provides that sponsored content (such as paid Instagram posts by social media celebrities) should be clearly distinguished from the surrounding material in a way similar to sponsored ads in Google search engine results.

Now that the AANA has taken this stand, it would be within the power of the Australian Competition and Consumer Commission (ACCC) to take action against those not clearly distinguishing the influencer marketing material from surrounding material on the ground that the conduct is misleading and deceptive.

It will be interesting to see if the ACCC takes action against any social influencers, similar to how Consumer Affairs Victoria pursued Belle Gibson (for misleading and deceptive conduct regarding her fake cancer cure).

#INSTA-ACTION

Influencer marketing provides an excellent opportunity to connect with your target market more organically. However, businesses need to be aware that unlike other marketing channels, influencer marketing offers a variable level of control and reliability.

To protect your brand and reputation, proper strategic consideration is required. Investigating the influencer to ensure brand alignment and requiring the influencer to enter into a contract are two simple #INSTA-ACTIONS that can minimise the risk of #INSTASHAME.

Key Takeaways

1. Influencer marketing enables businesses to access their target market via social media;
2. Influencer marketing campaigns must be considered with a particular focus on the management of reputational risk; and
3. Industry-based regulations and the stance of consumer-focused regulations are strengthening to catch up with this marketing practice.

For more information about influencer marketing or to discuss intellectual property strategies for your business, please contact our Intellectual Property team.

This article was written by Mark Metzeling, Special Counsel and Mitchell Willocks, Lawyer – Commercial.