Business responsibility for the content of opinion formers and the cost of mistakes
With Black Friday approaching and social media advertising at its peak, businesses are increasingly turning to opinion leaders, also known as influencers, to communicate. Such campaigns generate a lot of attention and sales, but they also carry risks - especially when content is created quickly, sometimes without all the details being confirmed. This makes the question of who really owns the content and who is responsible for its accuracy particularly relevant.
Kamilė Žilinskytė, Senior Associate at AVOCAD, stresses that this responsibility is not unambiguous. She says that businesses often make the mistake of believing that only the content creator is responsible for the statements of the opinion-maker, but the legal framework shows that the responsibility is often shared. "Businesses need to be aware that when they work with an opinion-maker they share responsibility for public communication. If there is little or no control over the content, not only consumers but also regulators may have to explain themselves," she says.
The law is clear that advertising on social networks must be identifiable, truthful and not misleading. The Law on Advertising, the Law on Prohibition of Unfair Commercial Practices for Consumers and the guidelines of the State Consumer Rights Protection Authority (SCPRA) stipulate that the content of advertising must not contain unsubstantiated claims, concealment of material facts or artificially induced discounts. The message must be labelled as an advertisement, but labelling alone does not guarantee that the communication will be considered legitimate - businesses need to ensure that the information disseminated by the opinion leader is accurate and substantiated.
According to AVOCAD lawyer, this trend is confirmed by the recent case law of the Supreme Administrative Court of Lithuania, which notes that not only the advertiser but also the advertiser may be held liable for the dissemination of misleading advertisements, provided that three conditions are met: (1) the disseminator knew or should have known that the advertisement used did not comply with the requirements of the law; (2) the disseminator knew or should have known that the requirements of the law were violated as a result of his/her actions in the production or dissemination of the advertisement; (3) the disseminator is unable to provide evidence that would allow the identification of the advertiser (producer). This means that both the brand and the opinion-maker can be seen as jointly liable entities, and it is not enough for a business to formally state that certain information was an "influencer's interpretation".
The question is whether a business must review every social media post and story. According to Kamilė Žilinskytė, the law does not directly impose such an obligation, but it is up to the business to ensure content control mechanisms. "Businesses are not obliged to check every post to the minute, but there must be a clearly agreed procedure: what can be posted, what information must be checked, what phrases cannot be used. If everything is left to 'free creation', the responsibility often falls on the shoulders of the business", she stresses. This is especially true during Black Friday, when campaigns are intense, discounts change several times a day and mistakes can lead to both financial and reputational losses.
An opinion-maker can be considered a brand spokesperson even if he or she does not have official status. It is sufficient that he or she uses the brand's visual style, speaks in an "us" form, refers to information provided by the brand, or communicates in accordance with the brand's clearly defined instructions. In this case, the content he or she produces is seen as part of the brand's communication and therefore becomes a shared responsibility.
To defend yourself in a dispute, documentation is key. Contracts, briefs, content guidelines, a history of approved records and written communications about discounts, codes, stock or product features are key evidence that the business gave the right instructions. If the inaccurate information is due to carelessness, error or self-interpretation on the part of the opinion-former, it is these documents that can help the business to prove it.
In preparation for the intense Black Friday sales, it is important for businesses to develop a clear process for controlling content, to address all aspects of communication in contracts and to monitor the reputation of the opinion leader. Each statement, visual or discount reflects not only their creativity but also the values and responsibilities of the business itself.
"Every word in the recording is a communication on your behalf. Therefore, the content must not only be attractive, but also legally safe," stresses AVOCAD Senior Associate Kamilė Žilinskytė.