Civil liability of digital influencers

The current world is surrounded by new forms of advertising and propaganda, and with the advancement of the internet and the influence of social networks, we are faced with a new essential character for the vast majority of advertising of this new generation: digital influencers.

These people, in their vast majority, are creators of content for the internet, actors, models or people known by the media, in which large companies come to see their large numbers, engagement and followers of these social networks as a real machine to boost sales.

However, according to the Consumer Protection Code, a new problem arises that we need to face: what is the responsibility of these characters, digital influencers, when the consumer is injured in any way?

In this article we will explain what is the responsibility of digital influencers in front of advertisements that cause some damage to their followers, who eventually become consumers of the product.

First of all, one should understand the civil liability present in the Civil Code, characterized by the legal notion of liability that presupposes someone’s harmful activity, which violates a pre-existing legal norm, subordinating the consequences of the act practiced.

That is, according to the Civil Code, when an attitude of someone, who violates a legal norm, causes damage to others, there is an obligation to repair this damage, due to legal liability.

Thus, civil liability originates from the aggression to an extremely particular interest, in which it subjects the offender to restore the thing to its previous state, or, if he cannot, to payment in the form of pecuniary compensation in return.

It is worth mentioning that responsibility has its assumptions, which are: human conduct; damage or injury; and causation. That is, it is not enough just to have had the consumer’s loss, it is necessary that it is proven that the act of the influencer, for example, is related to the damage caused.

Civil liability is divided into subjective and objective civil liability, so that the subjective is the result of a damage caused due to a culpable or intentional act, while the objective is characterized by the non-need for the characterization of guilt.

Advertising is guided by the consumer relationship, which is made up of the figure of consumers and suppliers, with the consumer being the final factual and economic recipient of the products and services made available, and the supplier being the one who offers the products and services.

Still, it is important to mention that as mentioned earlier, advertising is guided by the governing principles of advertising activity, that is, it has as its primary principle that of objective good faith, since it has the function of seeking harmony in consumer relations, and the others such as trust, identification, loyalty and bonding as the guiding principles of advertising.

In order to better understand advertising activity, illicit advertising should be characterized, which refers to advertising that causes damage or that offends the consumer in any way, highlighting abusive and misleading advertising, according to the Consumer Protection Code.

Abusive advertising refers to the vulnerability of the consumer, who is induced to behave in a way that harms or that offends moral values; and misleading advertising is totally or partially false advertising, which compels the consumer to make a mistake at the time of purchase.

Digital influencers are celebrities of the digital world who stand out on the internet, and have skill in the art of reaching followers, given that they are opinion makers and responsible for influencing the behavior and mentality of their followers, based on a strong link of trust and credibility.

In this way, companies began to invest the advertising of their brands in hiring influencers, in order to create content that promoted their products or services. Through the advancement and diffusion of the internet, the digital environment has allowed new forms of interaction, becoming the main means of communication and information storage of humanity.

In this way, the main means of conveying information and disseminating products or services is through social networks; thus, digital influencers use these means to reach their audience and induce them to purchase a particular product or service.

Thus, it was concluded what is the responsibility of digital influencers before the Consumer Protection Code, before the advertisements that can cause some damage to their followers, attributing to digital influencers objective responsibility of reparation before consumers, that is, that does not depend on the characterization and proof of guilt, due to the indication of products or services, since they have very high power of influence on their followers or consumers.

Thus, the influencer must answer for the damage caused, since advertising is served directly, through him and his social networks, due to the power of persuasion exercised over his followers and the economic advantage received to advertise a certain product or service.

Yasmin Khairalla. Lawyer, graduated in law with emphasis in private law, from Pontifícia Universidade Católica de Campinas (2022), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2022), lawyer in the litigation department at TM Associados