The world of online advertising is its own universe. And it’s very complex! Back in the “old days,” a person may have had a company website, and then some “banner advertisements” would be at the top of and along the sides of the page. It was obvious that what was an ad as was the need to ‘click’ to get from the ad to the advertiser website.
With social media today, however, the line between an ad and “organic” content has collapsed, or at least gotten pretty blurry. You see this in spades on Instagram and TikTok. For example, a content creator can be recognized for family-friendly recipes. They create a post that has a recipe for an item, such as a recipe for a blender. They provided a link at the bottom that has ‘click here to find the blender’. The answer is, was that content creator paid to feature that blender? Were they discreetly marketing the blender without labeling it as such? No matter the product or service, influencers shine when they showcase a product. It has several names: sponsored content, product tutorials, sponsored posts, shout outs, collabs, or branded content. Call it what you will, a video influences people to buy something – even if the users don’t really know what’s an ad and what’s organic. (And, yes, I know that the FTC requires “ads” and “paid promotions” to be labeled as such, but a) do you think the FTC really can keep up with TikTok or Reels?, and b) does anyone really notice those teeny-tiny “sponsored” messages? Sorta? Kinda?
Paid content promotions can be legal and may be a standard method for online influencers and corporations to make money online. Here’s where the consumer must watch their step. This is true especially if they are tracking a new Instagram influencer or company that may be claiming rights to sell a product. There is a lot of potential for brand and trademark confusion. Hence, there is a growing amount of litigation over not just ad content but organic content and alleged confusion. It all depends (on the facts).
AN EXPERT WITNESS IN ONLINE ADVERTISING
If your problem is digital media where a false advertisement has been used, perhaps I can help as your expert witness. Sometimes, it seems that 1/2 my work is “forensic,” that is merely figuring out who did what where, when, and how. I trace the trail of evidence across ads and organic on social. Is it easy? No. But can it be done? Usually, especially within reason and with some due diligence. As a social media expert witness, I deal with copyright infringement, trademark misuse, and unlawful use of intellectual property. And loads of convoluted cases live or die, not on the law (alone) but on the facts. (Which can be very messy and convoluted, and it takes someone with a knack for research and teaching to make sense of it all for a judge, jury, and executioner. (Ok, not that last one).
In fact, in 2020 alone, false advertising can be reported to the FTC. Having served as an expert witness who has given fact-based testimony on online ad cases, I can confirm that things can get really complicated and convoluted to “laypeople.” My background is rich in experience from the digital world such as social media marketing, SEO, Google Ads. I am a digital footprint tracker and complexity uncomplexifier. Brands and their ads, whether on Facebook, TikTok, Youtube, X or Instagram – I do not care where they are — I can help you get to the facts. If you’re a lawyer looking for an expert witness in social media, give me a call today at 415-655-1071.
