Influencer marketing is very popular with brand owners in a social media context and grew significantly when the pandemic led performers to social media as an outlet to connect with their audience. In broad terms, an “influencer” is an individual, including a celebrity, who creates content and shares it through social media to influence purchasing decisions of their followers.
Consumers routinely follow the day-to-day activities of these influencers who share their interests and whose opinions they respect. The influencers are an important source of information for busy consumers. They frequently provide impartial product reviews and recommendations.
Brand owners who wish to work with influencers need to develop guidelines relating to this type of marketing. The guidelines should include the following, among other matters:
a) An initial careful review of the background and attributes of the influencers as they will be brand representatives
b) Provisions in contracts with influencers that contain a right of termination if the influencer engages in behaviour inconsistent with their perceived role with the brand and post-termination restrictions
c) An obligation by influencers to comply with applicable laws, including disclosure of their connection with the brand.
Advertisers should ensure that influencers comply with the Competition Act. Brand owners need to ensure that influencers clearly disclose material connections to the brand, make such disclosure in each post, and make sure the statements they make are neither false or misleading and not a product performance claim unless based on adequate and proper testing. The Competition Bureau has emphasized the importance of this disclosure and published guidelines. See, for example, The Deceptive Marketing Practices Digest volume 4 https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04372.html
If you have questions, please contact me at mckeown@gsnh.com.
Goldman Sloan Nash & Haber LLP 480 University Avenue, Suite 1600 Toronto, Ontario M5G 1V2 Direct Line: (416) 597-3371 Fax: (416) 597-3370 Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.
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