Is It Time To Regulate The Social Media Influencing Space?
Legal Articles

Is It Time To Regulate The Social Media Influencing Space?

Who is a Social Media Influencer?

User networkSocial media influencers have the ability to make the most ordinary things trend worthy. It is no secret that they play a vital role in advertising, marketing and making sales in the digital space. This is attributed to their social media following and their ability to influence their followers’ consumer habits.

If you are wondering who a social media influencer is, it is a person who has built a reputation from their knowledge and expertise on certain issues. They have a large following of people who value their views on certain issues and products. They also know a variety of platforms and stores that sell items or provide services that consumers wouldn’t otherwise know of. As such, they can affect consumers’ purchasing decisions based on their position, authority, knowledge or interactions with them. This article will focus on social media influencers in Kenya. It will also analyze how they affect the consumer, their role in market competition and whether they should be regulated.

The Influencing Menace

WarningAlthough influencers have contributed to sales increase of many companies, social media influencing has a very ugly side. For instance, misrepresenting the quality of goods and services to consumers. Exaggerating the quality violates a consumer’s rights, while giving negative reviews affect a company’s reputation, sales and competitive advantage. Social media influencers also risk being sued by consumers for product/service misrepresentation; or by businesses affected by the negative reviews, where the actual performance or quality of their products is the opposite of what was communicated to consumers. They can also be parties to a suit for being the channel used to engage in unfair market competition. Picture these two scenarios–

  1. You pay for a good/service because someone whose opinion and reputation you trust recommended them and gave an assurance that they were worth your consumption; only to realize that they do not live up to the expectation that was created.
  2. You contract a social media influencer to market your goods/services. One day, your sales plumet, you lose customers to your competitor(s) and your reputation is damaged because of a negative review they gave based on their experience; yet that experience doesn’t reflect the actual quality of your goods/services.

Questions RTLThe Legal Position in Kenya

Social media influencers may not know that sometimes they are offered products and after sale services, to lure them into marketing the products to the public; while the quality their followers receive fails to meet the standard of what was marketed.

Though consumer protection is often overlooked, it is an existing right. Under article 46 (1) (a) and (b) of the Constitution, a consumer has the right to goods and services of reasonable quality and to information necessary for them to gain full benefit from goods and services. Making false, misleading or deceptive representation is classified as an unfair practice by section 12 (1) of the Consumer Protection Act. Section 12 (2) of the Act explains this to mean: a representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.

The Act does not make any reference to social media influencers, yet their actions also affect consumers. Social media influencers also have the ability to influence consumer behaviour. Similarly, no legislation exists to govern an influencer’s marketing and advertising strategies, or their interactions with suppliers and consumers. This leaves consumers vulnerable to manipulation and exploitation in an era of amplified misinformation and disinformation.

What is the Next Step?

There should be guidelines on how social media influencers market and advertise products. The Federal Trade Commission in the United States and the Competition and Markets Authority in the United Kingdom have put guidelines for social media influencers. Chevron arrows  

The guidelines should include provisions requiring social media influencers to do their due diligence before promoting or critiquing a product. What does due diligence look like for them? They should do their research on a product before promoting it. They should also try out these products before recommending them to consumers. Issuing a disclaimer should not act as a discharge from liability for the damage caused by the products they recommended, where consumers were misled or harmed. Further, parameters on how they promote a product and the information they give should be regulated to mitigate any negative effects that genuine consumers and suppliers may suffer. A clear distinction should be drawn between what is an opinion and what is a fact because the former is very subjective.

Hidden advertising should be made illegal and influencers compelled to disclose that they have been paid or given an incentive to promote a good or service. Social media platforms like Facebook, Twitter and Instagram should be mandated to implement this by:

Social media influencing is not a passing trend. It is now a reliable way of marketing. Since the command that social media influencers have is amplified in the digital platform, the space needs to be regulated to ensure consumer protection and healthy competition amongst businesses.

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