Recently, a popular social media influencer who happens to be my client was engaged by a company to promote their 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 later investors lost all their money. The owners of the platform, as expected, disappeared and were nowhere to be found.
Since the owners of the platform were on the run, the investors decided to hold my client responsible and as a person of contact for their loss. They asked my client to refund them the money they lost which is running into several hundreds of millions or that my client should provide them with the owners of the platform.
The investors claimed that they only got into the platform because my client being a person they trusted promoted and influenced the platform and he gave his word that the platform is legit as he has invested in the platform and he is cashing out.
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In our defense, 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, the culpability of an influencer or advertiser over a product he promoted which turns out to be a fake product or a scam or to 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 culpability or liability.
An advertiser or a media house or an influencer promoting a product on their platforms must use a caption like; sponsored post, ad, branded post or paid partnership etc, this will serve as a caveat or a disclaimer to the general public that it is advertisement hence limiting your liabilities if the product you are advertising ends up failing or ended up a scam. Although these disclaiming captions won’t make you totally not guilty of the bad advertisement but will make you less guilty by only limiting 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 took your words and used the product and it fails. 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 on your platform, it will not make you totally not guilty in the event of failure of the product. If the product ends up being an illegal or criminal product, 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 by promoting it. Hence why you are expected to do your due diligence before accepting to promote any product on your platform
In summary, if you want not 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 letting your followers know that it is a branded post and let them make up their minds by themselves if they would patronize 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.