In recent years, South Africa has witnessed a surge in the influencer marketing industry. With the rise of social media platforms like Instagram, YouTube, and TikTok, individuals from various walks of life have harnessed their online presence to become influential figures.
These influencers can help brands reach a wider audience and boost their marketing efforts. However, as this industry continues to evolve, both influencers and brands must be aware of the legal implications and responsibilities that come with it.
Here are some points to ponder:
Disclosure and Transparency
Disclosure and transparency are among the most critical aspects of influencer marketing in South Africa. Most people are not aware, but there is a Social Media Code of Conduct ("Code") that has been published by the Advertising Regulatory Board ("ARB"). In addition to the Code, influencers and marketers are governed by the Code of Advertising Practice, which is based on the International Code of Advertising Practice. This mandates influencers to disclose their partnerships with brands and means that any sponsored content or endorsements should be clearly labelled as such, using terms like "sponsored," "ad," or "paid partnership."
The Consumer Protection Act 68 of 2008 as amended ("CPA") states that advertising must not contain deceptive, false, or misleading content, including deceptive claims, offers or business practices. Influencers should exercise caution when creating and promoting content. Additionally, influencers should only endorse products or services they genuinely believe in and have personally used.
Influencers should, therefore, thoroughly scrutinize the brands and products they agree to promote before doing so.
Intellectual Property Rights and Privacy and Data Protection
Influencers often create unique content, including photographs, videos, or written material. This also often becomes a bone of contention on ownership. As such, both influencers and brands need to understand the implications of intellectual property rights in these cases, and therefore, an agreement concerning it should be established before the promotion occurs.
Influencers often collect and handle personal data, like email addresses and engagement metrics. They must adhere to the Protection of Personal Information Act 4 of 2013 ("POPIA"). This means obtaining proper consent for data collection and ensuring the secure handling and storage of personal information.
A clear and comprehensive contract should govern every influencer marketing partnership. These contracts should outline the scope of work, compensation, content ownership, disclosure requirements, and dispute resolution mechanisms. Having a well-drafted contract in place helps protect the interests of both parties and minimizes the risk of legal disputes.
List Social Media platforms;
Details on the desired type of social media engagement;
Remuneration and terms around it;
The obligation of the influencer to disclose that it is a paid advertising campaign;
If content is not self-created, content rights, including the ownership of content;
Grounds of termination.
As the influencer marketing industry grows in South Africa, legal considerations become increasingly important. Both influencers and brands must navigate the legal landscape carefully to ensure compliance with local regulations and protect their reputations.
Seeking legal counsel or consulting with experts in influencer marketing can help parties avoid potential pitfalls and build successful, compliant partnerships. By adhering to ethical and legal standards, South African influencers and brands can contribute to the industry's growth while maintaining trust and integrity in the eyes of their audience.
Written by Nicolene Schoeman-Louw, Specialist Technology, Commercial and Contract Law Attorney, SchoemanLaw