ARTIFICIAL ENGAGEMENT: INFLUENCER COOPERATION COURTS CONSUMER LAW CONCERNS

Brands are often attracted to integrating social media influencers as part of marketing campaigns because these individuals have pre-established, organically developed audiences within highly desirable consumer niches. However, recent changes to the Instagram algorithm to prioritise posts displayed based on popularity rather than chronological order, and the more recent removal of a visible ‘likes’, has resulted in influencers looking for new ways to maintain follower numbers compelling enough to keep brand relationships on foot.  One such tactic, known as “Instagram Pods”, has been identified by a recent study out of New York University: click here.

Instagram Pods or “pods” operate by agreement between users (ranging from a handful up to several thousand members) to like and comment on each other’s posts in order to manipulate the algorithm and increase content reach.  Referred to by the study as ‘reciprocity abuse’, the appearance of instant higher engagement achieved via pods is generally designed to push content onto the Instagram ‘Explore’ page and thereby increase the likelihood of gaining genuine new followers or a post going viral.

Putting this ‘collaboration’ aside, this new tactic raises an interesting legal question – does creation of this ‘illusion’ of engagement contravene the prohibition on misleading and deceptive conduct under the Australian Consumer Law (ACL)?  Arguably, inflating post or account metrics can give a misleading or false impression to users and brand partners about the influencer – as well as any product which that influencer might be promoting. Moreover, misleading conduct is in contravention of Instagram’s Terms of Use and Platform Policy.  However, whether or not conduct of this nature is severe enough to meet the threshold test is questionable, unless perhaps false statements or representations are made.  We’ll park our legal analysis for another day!

What we can say at this point is that because these pods are not always easily detectable, businesses that work with social media influencers should directly address the practice as part of the ground rules for any such engagement. In particular, businesses should:

  • update your rules of engagement – review standard form influencer agreements, ensuring that influencers:
    • warrant they will not use pods to boost brand sponsored posts;
    • indemnify the business for any damage arising from or in connection with an influencers’ use of pods to boost brand sponsored posts, including breaches of the ACL and / or Instagram’s Terms of Service.
  • audit current partners – investigate whether any currently contracted influencers use pods for brand sponsored posts, and require that this conduct immediately cease; and
  • policy setting communicate these new requirements internally as well as to any media and marketing partner agencies to ensure consistency across the business.

This article was authored by Alexandra Moore (Solicitor), Valiant Warzecha (Solicitor), Jessie Buchan (Senior Associate) and Melinda Upton (Partner and Global Co-Chair, Intellectual Property and Technology).