The term “influencer” is a direct description of the people who hold the title — someone who people admire and whose influence they the follow. It’s a common phrase used nowadays with the gargantuan rise of social media; however, with the rise of social media influencers now comes “influencer hijacking”.
Influencer hijacking is typically when a brand hijacks an influencer’s content, and consequently their selling power, without paying the influencer a cent.
For example, in February of this year Pia Muehlenbeck called out a ‘skinny tea’ company for photoshopping its products into her own Instagram photos, and reposting them without permission. The photos implied that Muehlenbeck was an advocate for the tea, and hence her selling power and influence was reaped without the tea company having to pay her a penny.
A trend has emerged in which brands can attempt to leverage someone’s influence without engaging with the influencer; whether it be appropriating the influencer’s content (for example, photographic images) to imply a relationship with an influencer, to altering images to contain a brand's products.
The issue surrounding social media content and intellectual property and copyright is murky; however, there are some things an influencer can do if found in a situation where their content has been hijacked.
If an image has been scraped, altered and published without permission it is a clear breach of copyright under Australian copyright laws and the original content owner would be within their right to seek legal advice. However, it is important to consider is how such conduct could be seen as misleading and deceptive conduct, breaching the ACL.
The Digby Von Muenster law team explained to Mumbrella that “Sections 18 and 29 of the ACL prohibit conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive, or that falsely represents a sponsorship, approval or affiliation with another party that does not exist. The maximum penalty for engaging in such conduct for a company is $1.1 million.”
Further, if the influencer’s reputation had been tarnished as a result of the content theft and their reputation lowered in the eyes of reasonable members of the community, this conduct could result in defamation and legal action could be taken. As Digby Von Muenster further explained: “capacity for proliferation of communications on social media and by internet publication could result in significant damages payable by the hijacker due to the fact that the defamatory sting might percolate through the internet and social media and contaminate other communications… negatively affecting the [defamed person’s] career”.
