The Journal of Things We Like (Lots)
Select Page
Catalina Goanta & Sofia Ranchordás, The Regulation of Social Media Influencers (2020).

Ever since Judge Easterbrook famously declared Cyberlaw to be “The Law of the Horse”, and despite Professor Lessig’s excellent rebuttal, there has been a reluctance to declare new areas of legal study spurred by new technologies. Easterbrook claimed that we are in danger of descending into narrower legal sub-categories when most behaviour in what was known then as cyberspace was “easy to classify under current property principles”. At times this message has resonated with legal audiences, and we have largely not seen a push towards the creation of new legal categories. It would be difficult to say that there is such a thing as blockchain law, or artificial intelligence law, to name just two subjects close to this reviewer’s heart.

Nevertheless, after reading the excellent collection The Regulation of Social Media Influencers, edited by Catalina Goanta and Sofia Ranchordás, it is possible to envision a world in which we may have a new legal sub-category: Influencer Law. Importantly, the editors never claim the existence of a new branch of legal study, but the richness of the subject on display leads me to think of this relatively new area of research as its own thing. This is a rich subject that covers free speech, labor, consumer protection, advertising, intellectual property, and contract law, just to name a few. While these separate subjects could be analysed in their own separate niches, there is an argument to be made to bring them all together as a separate area of study, as they often interact with one another in manners that encourage a single thematic analysis. In general, edited books can be the poor relative of scholarly publications; in European academia for example, these books are the academic outputs that are valued the least. In this case, however, there is not a weak chapter in this collection and there is a very clear structure running throughout the book, with each section clearly delineated and well-executed.

The showpiece of the book is undoubtedly the introduction to the subject by Catalina Goanta and Sofia Ranchordás, who set out to define what is an influencer, and describe the legal status and regulatory pitfalls that they face. It is, of course, difficult to delineate the subject and define the concept of “influencer” in a way that can be used for legal analysis. The word influencer itself comes from an era of celebrities, and it is intrinsically linked with advertising. However, recently there has been a rise in the social media influencer that responds to the shift in audiences from traditional media to social networks. Social media in this context is understood as a platform that allows users to upload and share content to an audience. The social media influencer is not a celebrity in the traditional sense, but she/he may carry an incredible amount of clout in his/her niche area of interest. The challenge from a regulatory perspective is that these influencers are often operating in unprofessional settings, relying on monetisation schemes that are controlled entirely by tech platforms, and where commercial endorsements are not always transparent. This is a problem because it makes deception easier, but it also gives the impression that an influencer is endorsing a product because they like it, instead of the reality that showcasing it is part of a commercial deal. Influencers have considerable power to shape trends with their audiences, and as they say, with great power comes great responsibility.

So, what is an influencer? There are a few common elements. Social media influencers operate in “word-of-mouth” advertising environments where audience trust is paramount.  Influencers exert their, well, influence, in online communities through the constant production of content and through engagement with their peers. The authors identify four identifying elements of being an influencer: 1) the industry in which an influencer operates (e.g. beauty, tech, gaming, pets, kids, etc); 2) the source of influence (e.g. by already being famous as actors or sports personalities, while others are considered influencers by the number of followers in social media); 3) the reach of influence in the shape of detailed audience analytics; and 4) the legal status, namely whether an influencer operates in a corporate environment, freelances, or even acts as a consumer in more informal settings.

After providing a very thorough definition of an influencer, the authors engage in a discussion of the legal issues that surround the new influencer industry. Their central concern is with advertising. Advertising is a regulated activity in many countries, either by self-regulation, or as is the case in most of Europe, through advertising standards agencies, so the role of the influencer in the shaping of opinions, particularly in young audiences, has received the most level of scrutiny. The authors go through several examples of legal concerns that arise from the blurring of consumer/professional boundaries, particularly when it comes to endorsements, and the disclosure of whether an influencer may be praising a product in exchange for payment, or goods or services.

The authors end the chapter analyzing several other legal areas of concern. With the increased role of influencers as figures worthy of trust in their communities, the main question is one of the possible liabilities they may incur when promoting dubious products and events, such as the ill-fated Fyre Festival, defective products, or even disreputable schemes such as multi-level marketing. The book was written in 2019 and published in 2020, so the authors do not cover the recent wave of influencers promoting failed cryptocurrency schemes. Many of these influencers often fall outside of existing regulation, so it will be useful to have an area of the law dedicated solely to analysing the reach and effect of these actors, but most importantly, prepared to understand the environment in which they move. This could probably be an area of research in the future for the nascent area of Influencer Law.

The edited volume as a whole is filled with other excellent chapters. These include a notable discussion of child labor in the influencer world, by Valerie Verdoot, Mark Leiser, and Simone van der Hof. I also enjoyed and learned a lot from the chapter on the potential regulation of the influencer market using mandated disclosures, by Rossana Ducato.

I highly recommend this edited book. I enjoyed reading it cover to cover, which is rare in works of this nature. While Influencer Law may not yet be its own course or field, this book at least makes a compelling argument for the existence of a vibrant area of research.

Download PDF
Cite as: Andres Guadamuz, The Dawn of Influencer Law, JOTWELL (March 9, 2023) (reviewing Catalina Goanta & Sofia Ranchordás, The Regulation of Social Media Influencers (2020)), https://cyber.jotwell.com/the-dawn-of-influencer-law/.