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BlackBay Insights

  • Writer's pictureIsabella Orlic

Top 5 Social Media Law Issues Every Influencer Should Know

In today's digital age, social media influencers play a significant role in shaping consumer opinions, brand preferences, and even sparking social change. In response to this growing influence, the law has started to adapt to the influencer-business model and we have seen the introduction of a number of regulatory and statutory restrictions upon influencers in the market.

As such, it is imperative that influencers are able to navigate the complex landscape of social media law to avoid potential legal pitfalls. In this guide, we will delve deeper into the top 5 social media law issues that every influencer should be aware of.

Intellectual Property Rights

Intellectual property rights often pose difficulties for influencers and business owners who operate on social media, as most platforms promote the creation, sharing and reproduction of third-party content with audiences. If an influencer does not obtain consent from the owner of the content before copying or re-posting to their own accounts, they may risk the removal of the post, restrictions being placed on their accounts (such as deactivation) or being sent a legal letter of demand, and more.

In order to avoid these consequences, it is essential to:

  • Understand the different types of intellectual property rights: Copyright protects literary, dramatic, musical, artistic, film and broadcasting works; trademarks protect brand names and logos; and patents protect inventions and innovations.

  • Seek permission and give proper credit: When using other people's creative works, always ask for permission and provide appropriate attribution. This not only helps you avoid legal issues but also builds credibility with your audience.

  • Register and protect your own intellectual property: Secure your original content by registering trademarks and patents and enforce your rights when necessary to prevent unauthorised use or infringement This may involve working proactively with social media platforms to receive notification of any infringements of your intellectual property. For example, YouTube provides a Content ID system that enables users to block infringing content, monetise the content by running advertisements, and track the video’s viewership statistics.

Privacy and Data Protection

In our rapidly developing social media landscape, platforms and account-owners are increasingly able to record, communicate, and monitor the information and activities individuals and organisations. Influencers, as account-owners, often have access to sensitive personal information about their followers. To comply with privacy laws, such as the Privacy Act 1988, influencers should:

  • Develop and publish a clear privacy policy: Your privacy policy should outline how you collect, use, and share personal information, as well as inform your followers about their rights and choices regarding their data.

  • Implement robust data security measures: Protect your followers' data from unauthorized access, disclosure, or misuse by using secure data storage, strong encryption, and multi-factor authentication.

  • Notify followers of any data breaches: In the event of a data breach, promptly inform affected followers and take necessary steps to mitigate any potential harm.

  • Remain aware of the recent reforms to the Privacy Act.

Advertising and Endorsement Regulations

Influencers often collaborate with brands for sponsored content and endorsements. In order to maintain trust with audiences and protect your image, it is essential to comply with the regulatory guidelines set by bodies such as the Australian Association of National Advertisers (AANA), the Australian Competition and Consumer Commission (ACCC), and the Therapeutic Goods Administration (TGA) influencers should:

  • Clearly disclose commercial relationships: Use plain language and prominent disclaimers to inform your audience about any sponsored content or paid partnerships. For example, hashtags such as #ad and #paid partnership will likely satisfy the AANA Code of Ethics, whereas vague hashtags such as #spon or #gifted may place you at risk of breaching the code.

  • Ensure accuracy and substantiation of claims: Any statements you make about a product or service should be truthful, accurate, and supported by evidence. Avoid making exaggerated or unsubstantiated claims that could mislead your audience, or breach the standards set by the TGA.

  • Follow platform-specific guidelines: Each social media platform may have its own set of rules and requirements for sponsored content. Familiarize yourself with these guidelines and adhere to them when posting on different platforms. For example, TikTok’s community guidelines do not allow the depiction, promotion or trade of drugs, or the trade of tobacco and alcohol products on the platform.

Defamation and Reputation Management

The proliferation of social media has made it easier than ever to share opinions and information with others, However, this freedom also poses potential legal risks, as there is no way of controlling the extent of a defamatory publication on social platforms, and the extent of damage caused by a defamatory publication is exacerbated by algorithms. To avoid any defamation claims, influencers should:

  • Fact-check before posting: Verify the accuracy of any statements you make about other people or businesses to avoid spreading false or misleading information.

  • Avoid malicious or harmful content: Refrain from sharing content that could be considered defamatory, harassing, or damaging to someone's reputation.

  • Consider amending comment sections and sharing tools on your accounts and pages: Administrators may be held liable for defamatory comments posted on their social media accounts.

  • Respond promptly to defamation allegations: If someone accuses you of defamation, consult with a legal professional as quickly as possible and take appropriate action to address the issue, including if appropriate, removing or correcting the offending content.

Employment Law Considerations

If you conduct your business on social media, you must be aware of your obligations under Australian employment law. As an influencer, you may collaborate with various professionals, such as photographers, videographers, or content creators. To remain compliant, influencers should:

  • Be aware of your obligations as an employer: Understand and adhere to minimum wage regulations, workplace safety requirements, and fair working conditions.

  • Draft legally sound contracts and agreements: Ensure that any contracts or agreements identify the correct parties, clearly outline the scope of work and payment terms, identify services to be performed and deliverables to be provided, set out any permitted use of content created and any brand obligations relevant to the agreement.

  • Ensure the contract enables the parties to comply with any applicable regulatory obligations: This may include specifying the form of the method of disclosure to be used, the specific terminology concerning a product’s use, and any restrictions concerning third-party comments or engagements with the content produced.

  • Stay informed about changes in employment law: Keep up to date with any changes in local, state, or federal employment laws to ensure ongoing compliance and avoid potential legal issues.

Navigating the complexities of social media law is crucial for influencers seeking to maintain a strong online presence and create a successful business operating on social media. By understanding and adhering to the top 5 issues outlined in this guide, influencers can protect their reputation, build trust with their audience, and focus on creating engaging and organic content. If you want to confidently grow your influence and brand impact, contact a member of the BlackBay Lawyers social media law team today.


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