Brands and influencers: a risky alliance? – Photo

The words of influencers undeniably have an influence on opinion and consumption, depending on the extent of their audience on social networks. Some are so followed by millions of Internet users, to the point of becoming indispensable trend markers for brands.

Yet brands can be the subject of negative posts that harm them.

Different types of content can damage a brand’s image: product reviews, bad buzzban on boycott, promotion of counterfeiting …

Can the influencer be responsible for trademark infringement? Are all negative posts questionable?

Also, what can brands do to effectively combat illegal abuse?

To what extent does freedom of expression protect influencers?

Under free speech, influencers are free to communicate as they see fit.

Therefore, brands are forced to tolerate negative and critical reviews. This is especially true for big brands such as DOLCE & GABBANA, H&M or even L’OREAL, victims of bad buzz and even calls for a boycott, based on messages broadcast on social networks.

Some negative publications are likely to push the boundaries of freedom of expression and engage in the responsibility of their authors.

This is mainly the case of publications that can constitute acts of denigration, acts of defamation or even promotion of counterfeiting (a plague very present on social networks).

Judicial decisions that have recognized the illicit nature of a publication by an influencer are quite rare, perhaps to prevent the case from getting too much media coverage.

However, a recent example can be cited: with a judgment of 24 September 2021, the Paris Court of Appeal recognized the disparaging nature of the publication of the text on social networks. “What is this ‘shit’. We have to quickly throw it in the fire” based on the fact that she “overcomes the humor and derision that the right to free criticism included in the freedom of expression could authorize on the occasion of the launch of the first magazine, and characterizes the act of denigration”.

But let the brands calm down, they can act against such excesses.

Reactions and actions of brands in the face of abuse

Brands are not required to remain passive in the face of influencers’ excesses that can damage their image.

The social networks themselves have provided tools to allow brands to defend themselves and, if these are not sufficient or not perfectly suited to the case, brands can take legal action.

Sometimes, in fact, it is necessary to resort to the judicial process, in particular to legally obtain the identity of the authors of the publication and to try to obtain a compensation order.

(Published forums are the responsibility of their authors and do not involve CB News).

In practice, it is a question of proceeding through several steps, with the help of a lawyer specialized in the subject, and precisely in general:

o Have the disputed content noted by a bailiff.

o Go to the competent Court in order to obtain from the social network concerned the communication of the connection data of the account holder through which the disputed content was published.

o Appeal again to the Court to be authorized to obtain from the Internet service provider the contact details of the disputed account holder, based on the IP address provided by the social network.

Once the information has been obtained, it will be a question of taking appropriate actions against the person responsible for the contentious publication to obtain the cancellation of the content of the dispute or even measures to repair the damage suffered by the brand.

These different steps are essential because of the barriers inherent in the Internet in terms of identifying the authors of the content; even when the controversial publication comes from the account of an influencer whose identity is still “known” to the public.

However, in practice, brands are reluctant to take action, especially legal ones, against influencers for various reasons (complexity and uncertainty of the procedures, risk of negative publications in the event of an action, etc.).

It may happen that it is more appropriate for brands to adopt an alternative strategy to remedy the damage done to their brand image.

Brands must see influencers as a great opportunity, but also as communication vectors that carry risks. Therefore, it is advisable not to tolerate some violations that are sometimes dangerous for the brand and its image. Actions against such attacks must be considered and structured in such a way as to avoid even greater negative effects than the attack itself.

(Published forums are the responsibility of their authors and do not involve CB News).

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