Brands face risks when working with influencers

In a landscape where digital plays an increasingly central role, partnerships between brands and digital influencers bring numerous opportunities but also important legal challenges.

What are the main legal risks for brands when associating with digital influencers?

Brands face risks when working with influencers, especially concerning misleading advertising and compliance with consumer rights protection regulations. Among others, the following risks stand out:

• Misleading, hidden, indirect, or fraudulent advertising: If a Digital Influencer does not clearly identify a post as advertising, the "brand" may be held liable for violating Decree-Law No. 57/2008 (unfair commercial practices) and Decree-Law No. 330/90 of October 23 (Advertising Code).
• Reputational damage: If the influencer is involved in controversies, such a situation may affect the brand’s image.

What rights do consumers have when purchasing a product or service promoted by an influencer that does not meet the expectations created?

Consumers benefit from several rights. Among these, the following stand out:

• Right of withdrawal/free resolution: In online purchases, the right of free resolution applies within 14 days, as established in Decree-Law No. 24/2014.
• Right to contract termination: In general, within the first 30 days, the consumer may terminate the contract if the product or service does not match the description and qualities claimed, which were decisive at the time of purchase.
• Influencer and brand liability: In cases of misleading advertising, the consumer can file a complaint with ASAE and take the matter to court.
• Right to truthful information: If a product is promoted or advertised misleadingly, the consumer can demand a refund of the amounts paid and compensation for the damages caused.
• Civil liability: The right to be compensated for damages suffered.

What measures can brands adopt to ensure that influencer campaigns comply with advertising and consumer protection laws?

Brands can adopt several preventive measures:

• Focus on information disclosure: Ensure that consumers immediately understand they are viewing commercial content.
• Careful contract drafting: Contracts with influencers should include compliance with legal standards and provide penalties for potential violations. The obligation to clearly and unequivocally identify the commercial relationship at the beginning of the post cannot be ignored.
• Training and awareness: Influencers should be informed about the applicable legal obligations.
• Advertising transparency: Sponsored posts must be identified. As a best practice, the commercial relationship should be disclosed at the beginning of the post, for example, by using labels such as #sponsored or #partnership.
• Content review: Brands should oversee influencers' posts to prevent misleading claims about products.

Can influencers be held liable for misleading or abusive advertising? Under what circumstances?

Influencers can be held liable in the following situations:

• Lack of transparency: If they fail to disclose that a post is sponsored, they may be sanctioned for hidden, indirect, or fraudulent advertising.
• False or exaggerated claims: If they claim that a product has characteristics it does not possess, they may be held responsible for misleading advertising (Decree-Law No. 330/90 – Advertising Code).
• Violation of the Advertising Code: Advertising must be unequivocally identified as such, regardless of the medium used. This is known as respecting the principle of identifiability.

What precautions should consumers take when making purchase decisions based on influencer recommendations?

To avoid impulsive purchases or decisions based on misleading advertising, consumers should:

• Check communication transparency: See if the post mentions that it is an advertisement.
• Research reviews: Look for other consumers' opinions, not just the influencer's recommendation.
• Be wary of exaggerated promises: Miracle products or absolute guarantees can be signs of misleading advertising.
• Read the terms and conditions: Before buying, review the brand's return and warranty policies.