Nikita Munjal is a 3L JD/MBA Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

Using the Internet inevitably requires consenting to have your personal information used, collected, and disclosed by the websites you visit. A common reason for individuals, corporations, and non-profit organizations to collect your personal information is to influence your behaviour online, from your to your . One of the most effective ways to influence consumer behaviour online is through targeted advertising.

Value for Advertisers

Access to personal information has become necessary for advertisers to convert potential leads into customers. Think back to 2012, for example, when a suggested that a statistician working at Target predicted a teenage girl’s pregnancy based on her shopping habits. What did Target do with this information? It mailed her coupons for baby clothes and cribs.

that the value of your personal information to advertisers depends on various factors. Factors influencing value include your gender, race, and sensitivity of the information (that is, cost more than ). If, for example, the target audience for a new sneaker launch is young males of middle eastern origin, the spent to acquire your personal information is a minor investment to incur to influence you to purchase $180 sneakers.

Value for Users

Traditionally, users have valued the ability to share their personal information while using online services, like search engines or social media platforms, citing their .

However, increasingly, . This trend has mobilized startups in Silicon Valley to appeal to privacy-conscious users by providing them an incentive to share their personal information. Known as paid-to-surf models, companies in this space require their users to install browser extensions to track their browsing.

What monetary value do some privacy-conscious users demand to share their personal information? $20 a month for users of . Others are . While these paid-to-surf models have the potential to be disruptive, they are not yet a viable alternative, as users must surf a certain amount before they can cash out. ��

Value Going Forward

The tech industry has built empires based on collecting, using, and selling its users’ personal information to third-party advertisers. Surprisingly, some factions of the tech industry are modifying their business models to limit the tracking of personal information. Apple, for example, introduced a new iOS in 2021, s. Similarly, on its Chrome browser is estimated to impact millions of advertisers.

Apple and Google argue that these changes are necessary to respond to increasing and customer sensitivity to sharing personal information (the IPilogue has documented increased regulation in the and ). However, , including , lament that the changes are veiled anti-competitive practices.

Interestingly, increasing barriers to the online advertising ecosystem may benefit users. If access to personal information becomes impeded, interested parties may need to incentivize users to share their personal information, increasing users’ bargaining power. Although it is unclear what effect Apple and Google’s changes will have on the ecosystem, I am hopeful that users can leverage more control over their personal information for fair compensation by technology companies or advertisers for their valuable commodity.

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Michelle Mao is�� an IPilogue Writer and a 2L student at Osgoode Hall Law School.

You may recall Usain Bolt’s subtle but impactful on August 23, 2022, adding a trademark emoji to his iconic quote, “To the World”. That tweet spoke to his trademark of his iconic “lightning” celebration pose, indicating Bolt’s possible plans to create merchandise using his iconic celebrity power and image. Indeed, when searching the United States Patent and Trademark Office (“USPTO”) database, the signature pose for many industries, including eyewear and accessories, clocks and watches, leathers, bags, clothing, footwear, games, entertainment, restaurants, etc. While Bolt’s trademark registration is for the rather than the pose, the use of poses and gestures in branding can potentially bring a new wave of “unusual” trademarks, especially as social media and technology have spread previously unthought-of but recognizable traits. One type of “unusual” mark would be celebrities’ recognizable poses or gestures.

For some time now, celebrities’ brand images have increasingly used their iconic poses or features to market their brand to promote endorsed goods and services. For example, Kim Kardashian’s body-shaped perfume gained fame several years ago for demonstrating the recognizability of Kim K’s body as her brand. In the sports world, the trend to trademark poses and gestures like Bolt’s victory pose has been demonstrated for some time, Mo Farah’s “Mobot” pose, Gareth Bale’s “elven of hearts” gesture, and Jesse Lingard’s “JLingz” gesture. Similar to Bolt’s trademark, one other notable trademarked pose as a design mark is Michael Jordan’s “” which represents Michael Jordan’s Collaboration with Nike – the Air Jordan line.

To discuss future legal considerations arising from this trend of trademarking “unusual” marks, including poses and gestures, we must first understand the purpose and limits of trademarks.

The essential purpose of trademark law is to allow one entity to distinguish its goods and services from another’s. Therefore, a when analyzing the possibility of trademark infringement is if the general public would be likely to confuse, be deceived, or mistake the source of the good or service. Trademarks do not necessarily prevent all others from utilizing the trademark in the future. A trademark protects a brand’s image by preventing others from imitating or devaluing the brand through association with a similar or identical mark. The USPTO that if you trademark a mark, it does not allow you to gain rights over the mark in all uses but only allows you to gain exclusive rights to it in its specific category of goods and services.

So, what happens when the industry you are in requires selling yourself? For example, an influencer’s job is to promote products and services through their looks, personality, aesthetics, etc. An influencer can establish their brand through iconic and recognizable traits such as poses or physical features. An influencer’s image can be used to provide an endorsement service of a product or another service (for example, a celebrity holding up a branded item to be photographed). The option to is available and is generally not an issue because likeliness is unique, but what about something more generic, like a pose, gesture, or silhouette?

The legal problem comes if the over whether an iconic or even trademarked gesture or pose is being used by a third party to refer to the originating individual or if the gesture or pose is used to signal an endorsement from the individual. For example, other athletes being pictured posing in Bolt’s victory pose may have sent a message that Bolt was endorsing them for whatever reason (luckily, in this case, it was a tweeted by Bolt in 2018 before this trademark was submitted). If displaying a pose or gesture causes consumer confusion, we enter the territory of trademark infringement.

It will be interesting to see how trademarks evolve beyond word marks and design marks alongside increased online marketing through influencer brand endorsements. While Usain Bolt’s trademark this time is only for the flat design mark of his iconic pose, there is no doubt that trademarking poses, gestures, and other iconic traits will be on the minds of celebrities moving forward.

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Amin Hosseini is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.

On September 22, 2021, and its independent fact-checkers for defamation. In the , Stossel claimed that he uploaded two short video reports in which he interviewed experts about climate change, yet ��Meta (“Facebook”) publicly announced that Stossel’s reporting had failed the fact-checking process.����

In the first video, "Government Fueled Fires," Stossel stated that poor policies were the major cause of this year's fires and highlighted the importance of the role of climate change in the annual forest fires in California. Facebook examined the forest fire footage and marked it with a "missing context" label using its fact-checking tools.

��The second video, “Are We Doomed?,” questioned claims by “environmental alarmists” and elicited a similar response by Facebook’s fact-checking program — it was classified as "partly false information."

Stossel argued that the labels caused irreversible damage to his reputation, decreased the viewership of his content, and led to the loss of revenue. Regarding the first video, he claimed that Facebook attributed it to a statement that he did not produce; while for the second video, he stated that Facebook damaged his reputation by claiming he made false statements.

In response, Meta filed a motion for dismissal under and requested that the case be dismissed under (“SLAPP”). Briefly stated, SLAPP lawsuits�� seek to suppress and stifle critics to force them to cease voicing their opposition. Therefore, to safeguard freedom of speech, some jurisdictions have enacted anti-SLAPP laws.

The Court ��explained that the First Amendment protects expressions of subjective opinion and “not false statements or implied assertions of objective fact.” According to the judge, "[s]imply because the process by which content is assessed and a label applied is called a fact-check does not mean that the assessment itself is an actionable statement of objective fact.” In other words, the Court alluded that only reflects a subjective assessment of the "accuracy and reliability" of the claims and is not a statement of objective fact. �� Accordingly then, the Court dismissed Stossel's lawsuit.

It is noteworthy that the spread of disinformation is pernicious. One salient example was the , where disinformation led to noncompliance with public health measures, such as masking, and high levels of vaccine reluctance.

To combat “fake news,” governments must carefully regulate social media content. For instance, based on a , if social media businesses operating in Germany do not remove unlawful, racist, or defamatory posts within 24 hours, they risk hefty fines. Ontario addressed this issue by passing the in 2015.

Since the definition of fake news and disinformation is so broad, however, overly strict laws may and imposing limits on access to justice. Therefore, legislation must strike a balance between upholding critics' freedom of speech with others' rights to protect their reputations against false claims.

Further Reading

To balance the Constitutional rights of the parties, access to justice and freedom of speech, a Minnesota Court outlined a method for determining if the SLAPP law should be employed. You may read .

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Raenelle Manning is an IPilogue Writer and 2L JD Candidate at Osgoode Hall Law School.

Meta platforms (“Meta”), formally known as Facebook, is the leading developer of the Metaverse. The Metaverse is described as a of the internet where users can participate in a variety of activities, some of which include attending concerts, playing games, buying digital clothing, and working. People can enter the Metaverse through virtual reality (VR) headsets, augmented reality glasses, smartphone apps, and other devices. While inside, users are represented by a Through the avatar’s point of view, one experiences the avatar’s virtual reality. Essentially, the Metaverse is a virtual simulation of the physical world. ��However, a recent report from , a non-profit advocacy organization and online community that campaigns to hold corporations accountable, suggests that the darkest aspects of the physical world have manifested in the Metaverse.

Sexual Assault in the Metaverse

A �� researcher��wanting to study users’ behaviour on Meta’s social networking platform, , reported that her avatar was sexually assaulted only an hour after she entered the virtual space. Her avatar was led into a private party room where a male user sexually assaulted her while also making lewd comments. Meanwhile, other users outside the room watched and passed around what appeared to be a digital vodka bottle. The researcher expressed that although she was not physically harmed, the experience left her feeling disoriented and confused.

This is not the first time that VR users have reported abuse in the Metaverse. In December 2021, a woman published an article on describing her nightmare of an experience in the Metaverse. She explained that she had been harassed and sexually assaulted by a group of male users only one minute after entering Horizon Worlds. She also admitted to feeling helpless and being unable to access the safety features during the encounter.

What Makes the Experience Feel So Real?

The Metaverse is designed to give users an immersive experience; they are meant to psychologically feel like they are in the environment. This is achieved through immersive like��acoustic input for the ears, haptic simulation for touch and high-resolution imagery. For example, ��if you have either played or seen videos of people playing , the experience feels eerily realistic; you feel like you are actually the target of a zombie attack. The can make it difficult for the mind and body to differentiate between the physical and virtual world. This lack of discernment between reality and VR demonstrates the severity of this situation, and��how traumatic it must feel to experience sexual violence in the Metaverse. Although the user’s body is not being physically violated, the experience may render significant psychological impacts.��

What is Meta Doing About This?

The Metaverse has default safety features like “”, which prevent users from coming within a four feet distance from each other. They recommend not turning this feature off when interacting with strangers. Another safety feature called, “”, allows users to immediately transport to an isolated area. These features still seem to put the onus on the users to protect themselves against cyber assault. Nick Clegg, Meta’s president of Global Affairs, stated in a recently published “ In the physical world, as well as the internet, people shout and swear and do all kinds of unpleasant things that aren’t prohibited by law, and they harass and attack people in ways that are. The metaverse will be no different. People who want to misuse technologies will always find ways to do it.”��While this statement may be true, the current minimally-moderated nature of the will inevitably allow abusive and harmful behaviour to thrive.

Conclusion

There are calls for increased user regulation in the Metaverse. However, the prevailing response is that moderating user’s behaviour will be practically impossible because these in real time and are thus difficult to track. We have seen first-hand, on networks like Twitter and Facebook, that as online communities expand, it becomes difficult to monitor harmful behaviour and content. The immersive nature of virtual reality arguably warrants serious consideration about what more can be done to protect users from virtual violence. The Metaverse is still in early stages of development and it is anticipated to significantly transform the future of human interaction. Meta and other companies involved in the Metaverse’s development should work to minimize the potential harms associated with their products to ensure users’ safety, as a company would in our non-virtual lives.

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Photo by Brett Jordan ()

Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School��

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On October 4, 2021,��it was publicized that Facebook Inc.����the U.S Federal Trade Commission’s (FTC) antitrust case that aims to force Facebook��to��sell Instagram and��WhatsApp. The FTC initially filed a complaint that����and��requested the sale of Instagram and��WhatsApp��to prevent a monopoly over the social media market. Does Facebook��have a monopoly over the market?��Or��simply��a strong foothold?����

What is Antitrust��

The FTC’s Bureau of Competition enforces antitrust laws. These laws��. The market is said to be ‘free’ and active when there is aggressive competition. This competition is productive for society because it gives��such as lower prices, higher quality products and services,��and��greater��innovation.��

Antitrust laws try to����which are those monopolies obtained, preserved,��or attempted by a firm that tried to destroy its competitors on purpose. Under��, attempted monopolization is an antitrust offence if it meets certain criteria. The defendant must have employed����to obtain a monopoly in a defined relevant market. Second, there may be a dangerous probability that a��defendant will succeed in obtaining a monopoly unless��. While the FTC may appear to be blocking Facebook’s ability to maximize wealth by acquiring Instagram and��WhatsApp, this FTC case may be trying to preserve the competition and economic activity in the social media marketplace. In this particular case, the����and that Facebook controls 60% of the relevant market.����

Antitrust and Monopolies in the Tech Sphere��

Social media may be a broad, general marketplace and thus fail��to meet��one of the criteria under Section 2. Most social networks exist��in a niche, trying to����like Facebook once did, connecting people from around the world and writing on each other’s walls. This unique niche can then become a market on its own, but how exactly are these unique markets dominated by one defendant? Current suggestions focus on����in which case����over��WhatsApp��and Instagram. However, antitrust cases are few in high-tech industries, so FTC’s current complaint is difficult to compare in outcome due to limited jurisprudence.����

Facebook’s rebuttal����

Facebook has requested the FTC’s case be��. Facebook argues that the����with Instagram and��WhatsApp��which may demonstrate a limited factual basis that Facebook��since it acted with FTC’s approval. Further, social media is a rapidly changing market and Facebook still has��including��TikTok, Twitter,��and��Google.��

Conclusion����

People experienced the primary issue with Facebook’s mergers firsthand with the����outage on October 4, 2021. When a monopoly emerges, consumers have less choice and lose out on earnings. Consider the lost advertising revenue with influencers and companies unable to post on��Instagram, or��concerned loved ones who rely on��WhatsApp��to communicate. Perhaps if the app trifecta was separated, the outage would not have affected us at all. However, Facebook is a corporation,��and��corporations aim to maximize wealth.��The FTC once agreed with this when����Facebook’s purchases of����in the first place. It may be hard for the FTC to go back on their word and undo these��-dollar deals.

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Photo by Jimmy Jin ()

Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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In August, Apple made headlines by . These new features are purported to expand protections for children through modified communication tools, on-device algorithm learning within , , and , and Search . Although protecting children as a vulnerable group should be of utmost importance to all, many security experts find some of these proposed changes troubling as they may undermine the company’s longstanding reputation in privacy preservation and enable future security .

Over the years, Apple has cultivated a strong reputation as a One of their core values and s is that After all, their security and privacy designs are so powerful that Apple allegedly can’t access encrypted user data—. In 2015, Apple CEO Tim Cook that while issues such as national security are important, Apple would not implement any technology which malicious actors could misuse as a backdoor to encrypted user data. Now, in 2021, Apple’s ironclad encrypted system has one exception.

As one of the changes, Apple intends to introduce photo-scanning technology for all users to identify any Child Sexual Abuse Material (CSAM). This well-intentioned technology is already widely used online to identify known explicit materials, including terrorist propaganda and other violent content. Some consumers worry that all their private images will be scanned in search of illegal content; however, Apple is not proposing that. The technology scans for the “” of a file and matches it to a known hash. If a certain threshold of known CSAM is found, barring false positives, then law enforcement is contacted. Strangely enough, Apple has noted that users can opt to disable photo uploads to iCloud, expressing that CSAM is only identified within their servers, and not on users’ devices. Some experts interpret this as

Some security experts expressed strong s over modified communication tools for children. Apple alleges that device software will detect any explicit content (not hashes) within a minor’s Messages conversations—a feature that can be turned on or off by a guardian. This will alert a parent if their minor has received any image that is flagged as explicit. This seems appropriate to allow some supervision to protect vulnerable children from online predators; however, the algorithms currently used to detect explicit images are . It is widely known that benevolent, non-sexual content, particularly , is consistently To add to this, child advocates worry about the possibility of minors in abusive households being monitored by such a faulty and algorithm.

Though is not a new concept, these changes will suddenly affect billions of consumers. It’s been reported that when a child, like any other user, experiences negative behaviour online, they . However, there is currently no way to report messages within Apple’s Messages application. . After causing a tremendous stir in both the privacy and child advocacy communities, Apple that Messages scanning would only apply to those under 13, not teenagers, and have attempted to offer limited clarity on the new technologies.

Despite the changes, . Children need to be protected and prioritized in terms of technology experience, but their privacy matters too. It will be interesting to see the roll-out of Apple’s polarizing changes, particularly how they will affect Apple’s reputation and ecosystem security and if Apple will introduce any more changes moving forward as it responds to community concerns.

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Photo by (Unsplash)

Shawn Dhue is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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Not only do songwriters and artists owe the viral video app for their songs taking off, but most artists also owe their fame to Black creators for creating phenomenal dances which helped those songs to go viral.

In June 2021, the hashtag started trending on multiple social media platforms and was viewed over 7.7 million times on TikTok alone. This trend started due to Black creators getting fed up with the cultural appropriation and credit given to their white counterparts. Black creators have finally spoken out about the recognition and financial gain white creators get from stealing their creations.

The strike centred initially around ’s song, “.” The Texan rapper's prior hit song, “,” alongside Cardi B, has inspired over (not views) made on the app. For the release of Megan Thee Stallion’s new song, Black creators decided to hold off on creating a new dance to show artists and white creators alike how much credit Black creators deserve for their success. Today, “Thot S**t” does not have a viral dance and include the song.

Many Other Controversies

White creators have controversially ��appeared in mainstream media for Black creator content many times. Nicki Minaj's song, “,” went viral again to celebrate Black beauty on TikTok. However, not long after the trend emerged, many white female creators started appearing on Tik Tok’s “” page. Discourse now fills the song's thread on TikTok over .

Another recent controversy surrounds ’s appearance on ’s in . The host asked the TikTok superstar to perform eight famous TikTok dances in a segment which has brought both Fallon and Rae . The show did not credit nor mention the IBPOC creators of the dances, adding more to the conversation of white creators’ success off of Black creators’ content.

Photo from

Both Fallon and Rae have now publicly addressed the backlash. Fallon apologized and admitted that the original creators deserved their spotlight. He then invited some of the creators onto the show to . In an interview with TMZ, spanning less than two minutes, Addison Rae said she loves and respects all the creators of the dances she performed. Additionally, she stated that it is “.”

What Can Black Creators Do Legally?

I recently wrote about . Although this ban from Black creators is similar, and the 6 make it more difficult for these creators to exercise their rights.

Creators would have better luck with claiming copyright protection if not for Tiktok’s app design. By default, once someone uploads a dance video online, it is protected under copyright. However, it is usually hard to figure out who created the dance first and what constitutes a dance. Unlike Facebook or Twitter, TikTok , which creates more difficulty in crediting creators. The app posts videos by popularity and not in chronological order. This ordering makes it extremely hard to figure out who posted the dance first.

The Copyright Act of 1976 has adapted to protect more pieces of works over the years. It was not until 8 that the Act allowed choreography to be copyright protected, Nevertheless, this amendment was for extended choreography, such as ballet routines and other dances performed in front of an audience. On the other hand, "social dances," defined as "," are not protected under the Act. This definition, unfortunately, includes short TikTok dances.

Conclusion

Overall, after researching the common law of copyright protection of TikTok dances, I have found that the law seems not to protect the work of these Black creators. As the strike continues, the best thing that allies and supporters of Black creators can do is to credit the original creators of these works. Recognition for the idea and creativity and the following they deserve will make up for the financial gain these creators have lost. This can be an appropriate solution until the law can adapt to ensure Black creators can get what they rightfully deserve.

The post Hashtag Black TikTok Strike: The Silence From Black Creators and Their Legal Rights appeared first on IPOsgoode.

Ali��Mesbahian��is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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As part of a recent effort to modernize the Canadian data and telecommunications legal landscape, the federal government proposed Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (“Bill”). In a nutshell, the Act provides the (“CRTC”) new powers to regulate the internet. ”, the Bill proposes to expand the scope of “ to include online broadcasters such as (as part of new “online undertakings”), and impose regulations requiring these platforms to pay for Canadian content they air. Non-compliance will lead to large fines.

The Bill has legitimate objectives; Canadian creators (of music, movies, series, documentaries, etc.) ought to be adequately compensated for enabling streaming services to generate profits using their content; however, the surrounding the Bill signifies that its impact on civil liberties are just as important.

The Controversy

Essentially, the Bill seeks to “” by allowing the CRTC to subject online undertakings to similar regulations to traditional broadcasters. The glaring question for civil liberties advocates was whether user-generated content (i.e., media uploaded to Facebook, TikTok, YouTube, etc.) qualifies as an “online undertaking” under the Bill. If it did, this could imply the government has the power to oversee and regulate anything, from your online political expression to pictures of your cat.

In its initial form in November 2020, : “the Act does not apply in respect of programs uploaded by unaffiliated users to social media services for sharing with other users.” Yet by April 2021, the government unexpectedly revoked this exemption. ensued from the public, academics, The Canadian Civil Liberties Association (“CCLA”), and parties from across the political spectrum, compelling the government to once again change its position. In response, Canadian Heritage Minister Steven Guilbeault announced that upcoming amendments would make it that the Bill will not target user-generated content.

But according to Michael Geist, a Canadian law professor in Internet and e-commerce law, the proposed amendments will only make the Bill . While they limit the CRTC’s regulatory power, the amendments do not restore the original exemption. Moreover, the amendments add a new section specifically on the regulation of social media. The government therefore seems adamant to extend its regulatory reach to social media.

Implications for Freedom of Expression

The federal government’s refusal to restore the exemption may be understood in light of their broader effort to adapt to the realities and technological advancements of the information economy. Specifically, one of their goals is to combat . These extremely necessary and urgent objectives require a robust, evidence-based policy framework that systematically addresses numerous factors related to the technological infrastructure that gives rise to these problems. There are three main considerations.

First, as Geist points out, freedom of expression also entails the freedom “,” meaning that we ought to demand transparency from Big Tech with respect to the algorithms through which content travels to other users. As Yale law professor Amy Kapczynski highlights, a broader policy analysis in such cases would include paying attention to intellectual property and trade secrecy laws that from disclosing their algorithmic models.

Second, it is unclear what criteria will be used to judge what content is “Canadian”. Such absence entails regulatory discretion¾a slippery slope that may prove problematic. As warned by Cara Zwibel, director of the Fundamental Freedoms Program of the CCLA, the concern is less about what the government will currently do with these new powers and more about the ” this Bill opens in the future. With little guidance on regulatory criteria, “Canadian content” seems highly malleable. To implement regulations without explaining how to interpret them tends to grant the government sweeping powers that may detriment online expression.

Third, it is important to learn from the problems faced by other jurisdictions that implemented similar provisions, such as Germany and Australia. Their experience shows that corporations faced with regulatory requirements tend to by broadly taking down any content that may be construed to contravene applicable legislation, in order to avoid hefty fines. Especially with the new amendments in Bill C-10 providing specifically for the regulation of social media, we must stop and ponder if it is a good idea to outsource freedom of expression to Big Tech.��

If the controversy around Bill C-10 points to one thing, it is that complex social problems require solutions that empower civil society, not ones that grant the government blanket regulatory authority.

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Isaac has already garnered attention from some big names, as he was featured on Thursday's YFile Newsletter! Read what they had to say about him . And for a quick demonstration of how Isaac works, check out the video below:

You can find more information about the event, as well as full bios about our panelists, on our page.

Registration is still open until 11:30 am, so click to reserve your spot. In case you are not registered, or having some trouble with the Zoom link, the event will also be broadcast live on and will be available for viewing after the event ends.

We look forward to seeing you at 12:30 and hope you enjoy the show!

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THE FEDERAL TRADE COMMISSION

The FTC works towards protecting consumers and competition through preventing anticompetitive, deceptive and unfair business practices. Over the years, the FTC has noted the potential issues arising from the and testimonials in advertising. In early 2017, the FTC sent out to celebrities, athletes, brands, and other prominent social media figures reminding them of the necessity to clearly disclose any relationship that is present when promoting products online. These letters outlined any significant mistakes the influencers were making in disclosing their social media partnership, such as including #ad below the “more” button, hiding any sponsorship-related disclosure in a large number of hashtags, and using abbreviations that may not directly indicate to the consumer that the post is in fact sponsored (such as #spon). The FTC also issued an with respect to endorsement guides. Two years later, the FTC continues to have issues with influencers’ disclosure of associations with brands and products.

RECENTLY PUBLISHED GUIDANCE ON INFLUENCER MARKETING

Recently, the FTC published a for social media influencers regarding disclosure of their online advertisements and sponsored posts. This guidance makes it clear that any financial, employment, personal, or family relationship with a brand must be disclosed on social media. Further, financial relationships are not limited to money. If anything of value was obtained from the relationship, this can trigger the disclosure requirement.

Interestingly, the guidance document also outlines that “tags, likes, pins, and similar ways of showing you like a brand or product” are endorsements. This raises practical questions with respect to how influencers would disclose endorsements when it comes to the casual usage and functions of their social media platforms, such as a “like,” rather than a formal post where captions for disclosure are available.

As has been established in the past, the FTC outlines how influencers and marketers must disclose. Ultimately, the disclosure should be hard to miss, simple and clear, and in the same language as the endorsement itself. Recently, many social media platforms have modified their design to include a around or beside the posted photo. The FTC makes it clear that the platform’s disclosure tool may not be enough and should be used in addition to more traditional forms of clear online disclosure.

A CONTINUOUS CONCERN

With social media platforms continuously changing the functional and design aspects of their applications, maintaining applicable rules with respect to how and when advertisements should be disclosed to consumers remains a difficult task. Influencers will continue to utilize grey-area or borderline methods of disclosure in order to ensure that their posts appear authentic to their followers, which will continue to create different sets of circumstances and considerations for the FTC to evaluate with respect to disclosure.

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

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