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Influencers and online liability

Every action has a reaction and a repercussion. Online content creators as well as influencers need to exercise major caution with every click of a camera, video and the social media upload or enter button. Why? There are third party rights that are involved whenever publishing of online content is concerned. Occasionally , depending on the context, exceptions like news, critique, parody, pastiche and education may apply. These exceptions are particular when we are talking about intellectual property rights.

Recently, Anita Nderu, a renown media personality and celebrity published a video on her instagram for a series dubbed #OVERDRESSEDCOOK. The content of the video should be rated R and was controversial because she was seen to promote LGBTQ issues. The reason her video went viral is that it prominently features Fresh Fri, a popular cooking Oil brand by Pwani Oil, prompting the company to tweet a clarification distancing itself from Ms. Nderu and her video.

Pwani Oil was compelled to tweet the clarificaton because Anita’s video had a clear impact on their brand’s perception by its customers. Many customers took to twitter to voice their concerns, thinking that the video was an overt effort by Pwani Oil to notoriously market the oil.

When we are creating online content, we tend to overlook a myriad of issues; one of them being visible brands within a shot. We do not stop to think or imagine the possible actions and reactions they may elicit to the public or the rights holders.

Intellectual property come with certain bundle of rights. In this regard, the trademark of the said brand can be deemed to be violated. Have you ever asked yourselves why some popular international shows blur out brand names on clips? These brand names may appear on apparel worn by media personalities or subjects of a media interview or show, bottles of water or even on incidental equipment or things appearing in the background. In summary, if it doesn’t belong to you, clear the rights! This is not only in the context of copyright as mostly discussed. It is also in context of brands and brand names among other intellectual property rights. Unauthorized use of brands indeed may and can attract serious legal liability.

One may be sued in a court of law and in turn incur financial liability in legal costs to defend themselves, they may be required to pull down a video or content that may have cost an arm and a leg to produce and may also cost the reputation of all subjects involved including that of the content producer or influencer. Do you remember reading a local case where a music producer and artist shot a music video in an international franchise establishment here in Nairobi and was thereafter sued for it? This is why the need for a legal team as a content producer is becoming more dire. The stakes are higher that perceived to be.

Some of the legal considerations a Content Creator needs to have within their radar include:

  • Always have a plan before you press shoot; pre-approved scripts and preparation of the team would be apt (especially for live feed),
  • Have the content reviewed by a team- they can be present or share the recording for their comments and approval before you upload ,
  • Always have model releases signed by subjects to your content before shooting or immediately after shooting and have their permission in writing, this goes a long way.
  • Where content is sponsored always state as such because you owe the consumer the right to be aware of the engagement. It impacts the perception of the consumer; and the content producer may be liable for any misrepresentation (This is part of our laws if you are not aware).
  • Engage a lawyer to help ensure that you, your business and reputation are secure. It is not as expensive as you imagine it to be. However, defensive lawyering will cost more than protective lawyering!


  • TECLA machocho

    Thank you for this information, very enlightening. I saw the video preview and saw the brand, it struck me as odd but i DIDN’t think it would mean much.

    July 2, 2020 at 3:42 pm
  • Mukami Wangai

    This is great Liz! Thank you!

    July 8, 2020 at 12:59 pm
  • David Gray

    With more and more content creators posting their works online The need for legal education has never been more important than it is now.

    July 8, 2020 at 2:45 pm