Influencer fraud could be criminal offence

Many column inches have been given over recently to influencer fraud. Could buying social media followers actually be a criminal offence?

One-in-eight influencers in the UK shows signs of having bought fake followers in the last six months. This is according to CampaignDeus, an independent influencer marketing benchmarking and reporting company [disclosure: I am an advisor to CampaignDeus].

It wasn't until January this year, though, that fake social media followers really hit mainstream media attention. This was when The New York Times published its exhaustively-researched article: ‘The Follower Factory’. The story focused on the buying of fake social media followers and fake engagement by people who want to appear more popular or exert influence online.

It was an embarrassing read for high-profile celebrities, athletes, pundits and TED speakers. Brits caught buying followers from Devumi, a US-based company, included Channel Four’s British Bake Off baker Paul Hollywood; Olympic rower, James Cracknell and Twitter board member Martha Lane Fox.

Earlier this month Unilever CMO, Keith Weed, reinforced his three commitments to influencer marketing made at the Cannes Lions Festival of Creativity by writing a LinkedIn article about influencer marketing.

Strong words. It is a sentiment I have shared for the past year or so. I made an abortive attempt to gain clarification about influencer fraud in January whilst researching my article Influencer marketing disclosure: cracking down on fake followers. I wrote to the CMA. My email got lost in their system.

This month I made a more concerted effort to understand whether so-called influencer fraud was actually seen as fraud under the law. I contacted:

• Competition and Markets Authority - the government department responsible for strengthening business competition and preventing and reducing anti-competitive activities.
• National Trading Standards - the organisation responsible for gathering intelligence from around the UK to combat rogue traders and tackle a number of priorities. These priorities currently include mass marketing and internet scams.
• Chartered Trading Standards Institute - the professional association which represents trading standards professionals working in local authorities, business and consumer sectors and in central government in the UK and overseas.
• Action Fraud - the UK's national fraud and cyber crime reporting centre.

Social media influencers should be held accountable for buying followers, or buying engagement, or engaging in practices of collusion (i.e. being part of a group which likes, shares & comments on each other’s posts automatically).

I contend the practice breaks consumer law as it improperly influences consumers’ decisions on what to buy, leading to people making the wrong decisions.

When social media influencers buy followers, buy retweets/likes/favourites etc or buy comments then provide sponsored content for organisations they are passing themselves off as having more online authority than they really possess. This is misleading both for brands and for users of social media platforms … in other words, they’re misleading us, the consumer.

Where someone inflates their influence online through purchasing or colluding in fake followers or engagement they are deceiving:

• Organisations (the companies who pay them to promote their products with sponsored online content)
• Consumers (potential purchasers who are unduly swayed in their buying process by seeing content online purporting to be from a person of influence)

Do my thoughts correspond with those of the regulators and the police? Ultimately it was the Chartered Trading Standards Institute which provided the fullest response. I publish the full written response from one of their Lead Officers for Fair Trading here:

“If a social media influencer buys likes, or other support, with the intention of misleading an organisation into paying him to promote a product, he could be breaching the Business Protection from Misleading Marketing Regulations 2008, which is a criminal offence.  It is also important that the individual makes it clear that they are being sponsored to promote a product, to ensure consumers cannot be misled under the Consumer Protection from Unfair Trading Regulations 2008.

“Acting in this way could also potentially be considered to be fraud, if the influencer is deliberately giving false information in order to defraud a business into paying him to promote a product.  Whether the police or trading standards would investigate such a matter would depend on the nature and scale of the misleading practice,  and the amount of money being defrauded from the organisations concerned. Any business who feels they have been defrauded in this way, can also take action in the civil courts for damages to cover any losses they have incurred, and if anyone thinks that a social media personality is giving false information regarding their popularity, they should contact the Citizens Advice Consumer Helpline on 03454 04 05 06."

Quote from a  Lead Officer for Fair Trading at the Chartered Trading Standards Institute. [NOTE: the text emphasis (i.e. the bolding and underscoring of copy are mine not the CTSI’s.]

Yes, influencer fraud is fraud

So, yes, influencer fraud could potentially be both a criminal offence breaching the Business Protection from Misleading Marketing Regulations 2008 and fraud.

What does influencer fraud mean for influencer marketing?

Researching this article took a considerable amount of time and thought to determine what exactly the issue is and who to contact for clarification. I have been working within Influencer Marketing for several years and it still took time and ingenuity to ask the right questions from the right people.

Everyone I spoke with at the various organisations was knowledgeable about their specific remit but I got the distinct impression that this was the first such request they had received. I don’t be believe it will be the last. However, both brands and consumers have a steep learning curve ahead if they want to bring wayward influencers to book through legal recourse. It might be an easier approach to spend time in the effective selection, vetting and onboarding phases when finding the most appropriate influencers for their programmes. Have a read of: How to vet influencers: an influencer marketing checklist.