Civil liability of digital influencers

Clarice Fernandes Santos Lawyer and Master of Laws; Specialist in Fashion Law & Business at Universidade Católica do Porto; Member of the Fashion Law Commission of OAB/MG.

The contemporary profession of digital influencer has, as its main function, shaping and spreading opinions on social networks through personal, informative, or advertising content to their audience, the so-called followers.

This social agent has significant influence on audience behavior and therefore represents an attractive marketing alternative for companies that want their products or services promoted by the figure of the digital influencer.

Such professionals assume the role of mediator between supplier and consumer and become responsible for advertising content published on their social media, and must observe the principles of consumer law, especially good faith, transparency, binding effect of offers, and consumer vulnerability.

Digital influencers are therefore part of the supply chain and may be considered equivalent suppliers. If they fail to comply with principles that protect basic consumer rights, they may be required to indemnify consumers for damages caused by act or omission.

This is supported by the Consumer Defense Code:

Art. 7 (...) Sole paragraph. If more than one author is responsible for the offense, all are jointly liable for damages provided in consumer protection rules. Art. 25 (...) Paragraph 1. If more than one party is responsible for causing harm, all are jointly liable for reparation under this and previous sections.

When information, qualities, or advantages attributed to a product or service do not match reality, the authority position of the digital influencer negatively impacts consumers, violating good faith and previously established trust.

For this reason, professionals must pay attention to all product and service characteristics before communicating messages and must be aware of duties such as duty to inform, duty of loyalty toward followers, and solidarity duty. In addition, the commercial relationship with partner companies must always be explicit.

In this context, one may cite the example of a well-known digital influencer who, during the global COVID-19 pandemic, violated government social isolation measures and promoted a party at home, publicly exposed online. The negative repercussion led partner companies to terminate contracts.

This situation demonstrates the power of influencer exposure on social media platforms and the effects of their conduct on brand reliability.

Another example is the case of a country music singer who, after an online show sponsored by Cervejaria AMBEV, was accused of encouraging excessive and irresponsible alcohol consumption, leading to an Ethical Representation before CONAR - Conselho Nacional de Autorregulamentação Publicitária.

The artist's conduct, who may be treated as equivalent to a digital influencer, can constitute abusive advertising under art. 37, paragraph 2, of the Consumer Defense Code, because content was produced that induces the public to behave in a harmful or dangerous way to health or safety by encouraging immoderate alcohol consumption.

The conclusion is that digital influencers play a relevant role in virtual consumer relations, influencing behavior and consumption habits. Therefore, the principles of objective good faith, information, transparency, and trust must be respected in all advertising content, under penalty of liability for damages.

Consumers, whenever harmed, may seek competent authorities such as CONAR, PROCON, or the Judiciary to enforce their rights.