CAN A BRAND INFLUENCER BE SUED FOR A BREACH COMMITTED BY A BRAND?

The recent spate of ‘crash’ among ROI Companies has called into question the activities of brand influencers. Whenever a company hits the rock or suffers opprobrium, its influencers, the same persons who had wooed members of the public into patronising the brand, would be quick to publish disclaimers, disassociating themselves from the embattled company and distancing themselves as much as possible from any liablity.

Time without number, the Nigerian media space has been greeted by this brouhaha of a company losing its footings and cascading down the pit; its flag bearers dropping-off the company’s flags and taking to their heels, leaving members of the public (the investors) stranded. In such situations, one question which usually arises is, whether the brand influencer(s) can be sued by any person or group of persons affected by the ‘crashed’ company, particularly where the owners of the company have disappeared.

WHO IS BRAND INFLUENCER?

A brand influencer is person contracted to market or promote the products or services of a particular brand (Wonder Legal). Such a person leverages on the trust bestowed on him/her by members of the public (followers) to influence choices.

An influencer, by his/her personage, wields so much power over his/her followers. This is because most followers regard an influencer as someone with a ‘superior knowledge’ about a pearticular brand, hence the trust. 86% of consumers who were interviewed during the 2020 Influencer Compensation Survey said they rely on social media influencers for credible information on brands (Theophilus Oladipo). This is why it is imperative that an influencer’s opinion on brands be based on experience, facts or adequate testing (Elvis Asia).

WHAT HAPPENS WHERE A FOLLOWER RELIES ON THE OPINION OF AN INFLUENCER TO INVEST IN A PARTICULAR SCHEME AND THE SCHEME FAILS?

It is crucial at this point to understand the somewhat ‘tripartite’ arrangement between a brand influencer, the company and members of the public. The company engages a brand influencer to be its flag bearer. By flying the flags of the brand, the influencer draws his/her followers to the company. However, the transaction/contract that eventually results is usually between the company and the customer. The influencer who acts as an intemediary between the company and the customer may not be a party to the eventual contract. He or she may also not be a shareholder or co-owner of the company, hence the tendency to deny responsibility when things go amiss.

BUT WOULD THIS DEFENCE OF ‘NO BE DO AM NAH!’ EXCULPATE AN INFLUENCER?

While the provisions of section 125 of the Federal Competition & Consumer Protection Act may have given a consumer the right to claim damages against deceptive marketers, deception or misrepresentation is a question of fact usually proved based on peculiarities of a particular case. For example, the court will have to find out whether such a misrepresentation was honestly made or not. In TERIBA V ADEYEMO (2010)LPELR-3143(SC), Tabai JSC stated thus: ‘it is my view that a statement of fact honestly made by a party cannot be held to be a misrepresentation simply because it turns out not to be quite incorrect.’

Where, however, it can be proven that an influencer ventured into promoting a brand carelessly or without adequate information about the brand, such an influencer will be guilty of misrepresentation. This is because the law expects that an influencer would conduct ‘DUE DILIGENCE’ on any brand before accepting to promote it.

Stressing on the above, Abimbola Osarague, JCA, held in OLAYIWOLA V FRN (2018) LPELR-46772(CA) that a representator (influencer) will be liable for misrepresentation where he or she –

(i) Knows or believes that the representation is not in accord with the facts; or
(ii) Does not have the confidence that he/she states or implies with the representation; or
(iii) Knows that he/she does not have the basis that he/she states or implies for the representation.

In JOHN HOLT & CO LTD V. OLADUNJONYE (1936)13 NLR 1, Mr. Killa, who needed a surety to enable him take some goods on credit, was described to his prospective surety as “a good produce buyer” by the seller of the goods despite the latter being aware that Mr. Killa was an unfaithful debtor. It was held that the seller’s representation constituted misrepresentation. Similarly in the English case of SMITH V. LAND & HOUSE PROPERTY CORPORATION (1884) 28 CH D 7, a vendor described a tenant as “most desirable tenant” when in actual fact the tenant owed several arrears of rent. The vendor’s representation amounted to misrepresentation.

CONCLUSION
From the above analysis, any person (individual action) or group persons (through a class action) who suffer(s) loss(es) by virtue of any representation made by an influencer can maintain an action for damages against the influencer himself or both the influencer and the company. To succeed in such a claim against a brand influencer, it must be shown that the plaintiff relied on the representation made by the influencer; that the influencer didn’t exercise the level of diligence expected of a reasonabe/prudent man; or that the influencer was complicit in the entire mess, etc.

RECOMMENDATIONS

1. A sector-specific regulation to complement the provisions of existing laws such as the FCCP Act, the NAFDAC Act, the Advertising and Practitioners (Registration, Etc) Act, etc.
2. Brand Influencer should always endeavor to do due diligence on brands before promoting them.
3. Brand Influencers shoud always insert an indemnity clause in the Influencer Agreement, stating that the brand company will indemnify them of any claim for damages from their followers.

REFERENCES:

1. Elvis Asia, ‘Legal Issues in the Business of Social Media Influencer’ (online)
2. Theophilus Oladipo, ‘Nigeria Must Develop a Legal Framework against Deceptive Advertisement.’ (online)
3. Wonder Legal (online)
4. Picture downloaded from Facebook.

~ CHEKWUBE NWA-ABUGU