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KHQ Lawyers’ Darrell Choong and Amelia Edwards discuss the pitfalls of fake celebrity endorsements and the ACCC’s dim view of what is likely to constitute misleading and deceptive conduct. Even if you find a picture of a celebrity wearing or using a product, that doesn’t mean they endorse the product or have consented to the use of their image or likeness in promoting the product, they write.
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Imagine this: there’s a blank space on your product, or website, and there is a nagging thought at the back of your mind that it should be filled up. You are unable to shake it off. Inspiration strikes. You decide to put up a banner proclaiming “Taylor Swift / [insert other popular singer reference of your choice] loves it, so should you!” A lone blurb is not enough, however! Two is better than one. Bang a couple of purloined celebrity selfies on there too and you’re done.
Creative license, or savvy salesmanship – call it what you want, but be warned that the ACCC is likely to call it misleading and deceptive conduct.
Bad Blood
The ACCC has recently published a media release raising awareness about the increase in the prevalence of ‘celebrity endorsement’ scams. In the media release, it was revealed that reports to Scamwatch regarding celebrity endorsement scams have increased by 400%, with consumer losses increasing by a staggering 3380%.
The ACCC has reported that as at 24 September 2018, consumers lost more than $142,000 through celebrity endorsement scams.
While the ‘star’ rating often isn’t the only fake when it comes to scammers who utilise fraudulent celebrity endorsements to sell dodgy products, we know all too well how easy it can for even the most well-intentioned marketers to get tripped-up on this one. In the age of the influencer, nothing comes for free. Even if you are lucky enough to stumble across a picture of a celebrity wearing or using your product, that doesn’t mean that they endorse your product or have consented to the use of their image or likeness in promoting your product.
The ACCC may or may not be Tay Tay fans, but they are definitely not fans of misleading representations of sponsorship or affiliation.
Look what you made me do
So, what should you do (and not do) to make sure you stay out of the woods when it comes to celebrity endorsements?
1. Best practice is always to make sure you contact a celebrity requesting use of a particular quote or image for marketing purposes – you may need to pay a licence or sponsorship fee.
2. You should only use direct quotes from celebrity endorsements for products or services, and only if the celebrity in question has actually given an endorsement.
3. Ensure what the celebrity has said is true and is not misleading in any way.
4. Get familiar with the terms of use of any social media platform you might want to use to publish a paid post or to share an image or other content from a celebrity. If you don’t have consent, or haven’t been upfront about compensation provided, then you may be in breaching those terms as well as the law.
End Game
If you’re uncertain about sponsorship and celebrity endorsements, or just want to talk TSwift with someone who cares, please contact the authors of this article.
Darrell Choong is a lawyer with KHQ’s Corporate & Commercial team, having been admitted to practice in 2018. He is currently rotating through KHQ’s practice areas and is excited to learn as much as possible during his rotations. Contact Darrell at dchoong@khq.com.au or connect via LinkedIn.
Amelia Edwards is a Senior Associate with KHQ’s Corporate & Commercial team. Her work focuses on entertainment law, marketing & advertising law, regulatory compliance, IP and brand protection, consumer law, and commercial contracting. Email aedwards@khq.com.au or connect via LinkedIn.
