Speaking in code - influencers & the law

Influencers don’t want to be known by that name. They prefer ‘content creator’, even though the code governing their conduct is known as the Influencer Marketing Code of Practice.

Interesting point about the name, so let’s start with that. I learned about this tussle over terminology at a Communications and Media Law Association (CAMLA) seminar on the law of influencer advertising. It was held at Gadens and featured one of their partners (Marina Olsen) along with an established influencer (and law student) Vanessa Li and Adrian McGruther, founder of su:ku:ya, an artist management business.

I get the point about ‘influencer’: for some creators, the work is a lot more than just the commercial part and, indeed, it can be creative. That said, I’m hesitant to ditch the old term. This risks confusion of commercial and non-commercial content. Commercial intent was acknowledged at this seminar as a defining feature of influencer conduct. The need for disclosure of that intention remains critical, but more generally, the blurring of lines reminds me of that other dilemma: who should be recognised as a ‘journalist’?

So let’s go back to firmer ground and look at what the Influencer Marketing Code of Practice says.  Oh, we can’t, because I’m not allowed a copy, only a summary. That’s according to AiMCO, the body that operates the code, which only makes it available to members. This makes me even more cautious. A few years ago, with colleague Karen Lee, I looked at various self- and co-regulatory schemes in the communications sector. The Influencer Marketing Code of Practice wasn’t in operation at that time, so it’s not in our study.

But we did look at other schemes that would apply to content in influencer posts, if not to influencers themselves. Some of these codes deal with specific products or practices (eg, advertising of alcohol) while the AANA Code of Ethics is the more general self-regulatory code for advertisers (ie, brands), with a complaints scheme run by Ad Standards. I suspect if Karen and I ran our original research again today, we’d have no choice but to omit the AiMCO code; it’s hard to assess accountability of a secret scheme.
 
So far we’re not doing well in unpacking influencer regulation. Let’s look at the final aspect covered in the seminar: the law. As the CAMLA participants and others have made clear, there’s a lot of law that applies to influencers.

For example, there’s the Australian Consumer Law (eg, rules about misleading and deceptive conduct), copyright law, defamation and contempt. The last of these was in the spotlight recently when The Australian reported that a few publishers were warned of a possible breach of suppression orders or sub judice contempt in the Erin Patterson trial. One of these was an influencer who revealed she had no knowledge of the law.

It’s great, in principle, that the industry appears to have taken ownership of the need to promote ethical practice. And I know it’s galling when people who make no contribution to your scheme later claim they follow your rules. But this week’s Digital News Report from the University of Canberra shows that in Australia, we’re more likely to consider influencers and online personalities a major source of disinformation than any other source, including activist groups or foreign governments.

Closing ranks and not letting the public see the rules by which you work will not help protect consumers and build trust.

Relevant links 

CAMLA seminar: https://www.camla.org.au/seminar/like-comment-subscribe-the-law-on-influencer-advertising-camla-young-lawyers/

AiCMCO code of practice: https://aimco.org.au/best-practice

Article in the Australian about contempt (paywall): https://www.theaustralian.com.au/nation/media-warned-over-their-reporting-of-mushroom-murder-trial/news-story/5d2e057ff9d745d95523acc612f036f6

Digital News Report: https://apo.org.au/node/330740