Product reviews provide some of the more interesting and useful content on social media feeds today, but it comes with legal risks. Companies whose products are the subject of these posts are increasingly taking legal action against social media influencers for content that they view as misleading, dishonest, or infringing on their intellectual property. Thus, content creators should understand the relevant potential legal risks before hitting that “post” button, especially if they are receiving compensation or are themselves selling competitive products. If you have questions regarding the legal issues that content creators should keep in mind, an experienced internet attorney can help.
When posting content about branded products, the risk of trademark infringement arises. Trademark infringement occurs when someone uses a trademark, such as a brand name or logo, without permission, and it causes confusion among consumers. Here are some key points to remember:
Similarly, the improper use of a brand name could create claims for false advertising. False advertising occurs when a business makes false or misleading claims regarding its product or service that can potentially harm consumers or competitors in the marketplace. The elements of a false advertising claim in the online review context are: the reviewer made false or misleading statements; the statements deceived, or had the capacity to deceive, consumers; the deception had a material impact on the consumers’ purchasing decision, and; the company has been, or likely will be, injured as a result of the false or misleading statement. If you are an influencer or a business owner and you are reviewing another business’s product, consider these guidelines to minimize risks of false advertising claims:
Reviews should be honest and not misleading. Otherwise, the post could be seen as defamatory. Trade libel is a form of defamation that could arise when disparaging the products of a company. The elements of trade libel in the online review context are: a written or oral false statement; published or distributed to a third party; with the intent, or reasonable belief, that the statement will cause financial loss for the business; there is in fact a financial loss for the business (i.e., special damages); and the statement was made with express or implied malice – that is, knowing the statement was false or with reckless disregard as to whether the statement was true or false.
The difference between trade libel and defamation per se is that defamation per se claims involve the business’ reputation, whereas trade libel claims involve the quality of a business’s products or services. Further, trade libel claims require proof of special damages, whereas defamation per se claims do not. To stay on the safe side, consider taking the following steps when posting a review:
Influencers also need to be particularly aware of the risks that arise when posting about products or companies that are in competition with products that they themselves offer. For example, an influencer that sells health products and negatively critiques competitive products for not being as “healthy” as claimed could be alleged to be unfairly competing. Unfair competition refers to deceptive or dishonest business practices that harm competitors or consumers. To reduce your risks of an unfair competition claim:
The Federal Trade Commission (FTC) is a government agency that protects consumers by preventing deception and unfair business practices. The FTC sets and enforces the legal standards that influencers must abide by when making product endorsements. If a brand has paid you to review their products or given you products in exchange for posting a review, you must follow FTC regulations. Keep the following advice in mind to comply with FTC guidelines:
Posting product reviews online can be a valuable way to share your insights and help other consumers make informed decisions. However, it’s crucial to do so responsibly and legally. Keep in mind that you can reduce your risks if your review is not false or misleading and does not cause the other consumers to be confused by your use of another company’s trademark in their logo, brand name or product name. If you have other questions about posting online reviews, reach out to a member of our team for guidance.