Miriam fights fake Facebook ads
Last week, TV presenter Miriam O'Callaghan struck a blow against fake ads on Facebook. A High Court order was obtained compelling Facebook to reveal details to her that might help identify the person who placed a number of ads for skin cream on Facebook last year, using her likeness for endorsement purposes.
O'Callaghan has said that she intends to seek damages over the alleged false and malicious adverts containing her image and name on Facebook and Instagram in 2018. That means taking on Facebook as well as whoever placed the ads.
It's a case that will be watched with interest.
Social networks are plagued with scammy commercials, whether in the form of actual ads or influencer-shilling.
Earlier this year, the British financial journalist Martin Lewis withdrew a similar case to O'Callaghan's in the UK against Facebook when the social network agreed to set aside £3m for an anti-scam project. In that case, ads using Lewis's face brought people to shaky cryptocurrency products, tricking thousands of people out of cash.
Outside the common law of tort, there isn't that much regulatory muscle to back victims of this kind of dishonesty up, either for those who lose money or those whose image may be fraudulently used.
Facebook and Instagram themselves take limited action, as O'Callaghan's case demonstrates. (Although they would say that they cannot just hand over an advertiser's confidential details without a court order as a matter of policy.)
It's not much better with so-called 'influencers'. Last year, the Advertising Standards Authority of Ireland (ASAI) received over 100 complaints about well known online personalities talking up products and services without declaring a commercial interest.
But enforcement is weak. Even if the ASAI catches you out, recent history shows that a short apology with a mischievous 'oops' tone is often enough to brush the issue aside.
By contrast, the incentives to push the commercialism as hard as possible are very strong.
Take Instagram. A mid-tier Irish Instagram influencer (100,000 followers, 1,000 engagements per post) can expect to make anywhere between €300 and €1,000 per sponsored post.
And the rewards for some of the top Irish Instagram personalities are eye-opening. Earlier this year, the digital director of Connector, a Dublin-based influencer agency, told the Irish Independent that he is aware of €10,000 sums paid for a single post.
"An annual contract with 12 posts, 24 stories and other deliverables" such as attending events and photocalls, can earn an Irish influencer "over €100k", Ivan Adriel told journalist Regina Lavelle. "The industry is moving towards brand ambassador roles, where an influencer will be contracted for three, six, or nine months and do five posts over the year including a press trip and a photocall."
These are legitimate, above-board advertising contracts that are totally in step with proper industry standards and shouldn't be associated with anything O'Callaghan is battling in court.
But as in any walk of business, not all 'influencer' commercial activity is recorded.
Many posts (or 'stories') mix what appear to be the fitness guru's trip to the vet with a lingering shot of them sipping the new diet drink they're promoting in a future or previous post. Or the influencer's admiring panoramic shot of the hotel suite she's been comped on the quiet understanding that she'll uncritically show it at some point.
Unfortunately, there is no real solution to this - the nuances become too subtle. (For example, if a majority of an influencer's posts are commercial, should the whole account be reclassified as an ad account?)
Here, the only real safeguard comes from a competitive market. If Instagram users feel that someone's account is too commercial, this theory goes, they'll stop engaging with it. That is actually the most terrifying outcome for any Instagrammer - their online audience is the only bargaining power they really have with paying brands.
To be fair, this is a genuine deterrent. Social media is arguably more democratic, meritocratic and fickle than other forms of media.
To quote one well-known Twitter blowhard, you can be cock of the walk one day and a feather duster the next.
But even here, there can be problems. One of the biggest challenges of our age is digital literacy.
Not among young people, but among the over 40s. 'Fake news' isn't nearly as big a problem among 21-year-old 'digital natives' as it is among 55-year-old Facebook video clip sharers.
Just like the scam artist who targets pensioners on the phone, middle-aged people seem to be much more gullible to obvious hoaxes and suspicious-looking ads on social media platforms.
Many lead back to the same type of product - fringe 'healthcare' products or wild west financial schemes involving cryptocurrencies like Bitcoin.
This raises an awkward question for many of us: if a ridiculous claim is made on Facebook via a source, a site we've never heard of before, how much responsibility is on us and how much is on Facebook for a person believing the claim made? Separately, what if this is through an ad?
Opinions vary on this. One view is that the platform (Facebook) bears the bulk of the responsibility for this content, whether it's a post or an ad. A more liberal view is that while Facebook should be required to take action against fraudulent or misleading content, there is a common sense threshold that sometimes comes into play, too.
We may soon get a clearer idea of what the Irish legal position on this is, thanks to O'Callaghan's court case relating to the allegedly fraudulent ads.
Sunday Indo Business