Lawyers at Mason, Hayes & Curran (MHC) have urged business who use social-media influencers for marketing purposes to check that this type of communication is in line with legislation and guidance.

In an analysis on the firm’s website, they say that the market for influencers has expanded significantly in the past five years.

This type of marketing is currently regulated by the Consumer Protection Act 2007 (CPA), and a non-binding code from the Advertising Standards Authority Ireland (ASAI).

Bigger role for CCPC

The CPA prohibits “misleading, aggressive or unfair commercial practices”, but MHC says that there have been relatively few prosecutions under the act.

“This is because it must be proven that the consumer made a transactional decision, based on the misleading, aggressive or unfair practices engaged by the business,” its lawyers say.

The Government has signalled a move away from self-regulation, with a plan for the Competition and Consumer Protection Commission (CCPC) to focus on ensuring that there is "full disclosure in relation to partnerships, sponsorships and other advertising relationships between media influencers and brands”.

Contracts

The MHC lawyers urge companies to be transparent about their relationships with influencers, and to include “clear contractual obligations” on influencers to comply with consumer law and advertising standards.

“Influencer marketing communication should be identifiable, without the consumer needing prior knowledge of that influencer’s commercial relationships,” they say.

The lawyers add that companies should not allow influencers to state opinions as facts, and should ensure that contracts require accurate descriptions of their products.

MHC also points out that companies should be aware of “the various quirks and limitations” of different social media platforms – on Twitter for example, the space available to include a disclosure is restricted.