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.
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THE OVERDRESSED COOK: THE PRIDE MONTH PROMO ONE Warning⚠️ 18+ This episode of The #OVERDRESSEDCOOK drops later today on my IGTV then YouTube and is probably one of my most fun episodes. I am very pro LGBTQ and this episode has so many WHAT! moments ? I saw this promo and was like surely team, these were the bits you chose?? Anyway it was the PJ’s #ProPride edition with the most fantastic and dramatic humans @i_am_romeothebossy & @victor_maish and very unlike PJ’s looks❤️ We were so extra! I looooooooove it! Glam: Make up @color_bysamantha Hair @lilyhairline Pj’s @2nuboutique Jewellery @beautygalorekenya ? @moonsun_pictures
Fresh Fri would like to state that we have not engaged Anita Nderu for product placement or any other advertising of any kind. However, we would like to thank her for being a Fresh Fri consumer.— Karibu Pwani Life (@PwaniLifeKe) July 2, 2020
Fresh Fri is keen on delivering quality products that promote #HealthyLiving
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.
Did Anita Nderu script this advert? ?— Lyne (@Leighn_Lyn) July 2, 2020
I love Fresh Fri but this looks more of a CD advert than a cooking oil advert. We cant sexualize everything!! pic.twitter.com/kstX7zg3xA
Anita Nderu doesn’t look like that lady who can do product placements or advertising without being invited to do so. There is something that Pwani Oil is not telling us about the ‘Fresh Fri’ advert.— kipkoech mitei Rober (@MiteiRober) July 2, 2020
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!