Promotion through social media accounts has become a substantial market in Kuwait, in which an influencer moves between paid advertising and personal experience without the audience always distinguishing the two. As the market has grown, serious questions have arisen. Is this a commercial activity requiring a licence? Who bears the loss where a promoted product is harmful or non-existent? Is it enough for an influencer to say they merely relayed the advertiser's words? This article addresses these questions under Consumer Protection Law No. 39 of 2014, the rules of civil liability, and the cybercrime provisions.
The Legal Nature of the Activity
- A commercial activity: promotion for consideration is a repeated commercial activity pursued for profit and is subject to the licensing and regulatory requirements applicable to commercial activity.
- Licensing: carrying on a regulated commercial activity without a licence exposes a person to administrative liability, so an influencer who promotes habitually is advised to regularise their position.
- The agreement with the advertiser: the relationship is a services contract defining obligations, consideration, and liability, and its absence is the source of most disputes.
- Invoicing: consideration should be documented by proper invoices, protecting both parties and evidencing the nature of the relationship.
Disclosing the Advertisement
- The principle: the audience must know that content is a paid advertisement, as concealing this misleads them and affects their purchasing decision.
- Covert promotion: presenting an advertisement as neutral personal experience is among the gravest forms of misleading conduct, exploiting followers' trust.
- Gifts and samples: receiving a product free in exchange for discussing it does not stop it being promotion requiring disclosure.
- Clarity: disclosure should be prominent at the start of the content rather than buried among hashtags at the end.
The Influencer's Liability
This is the most frequently asked question in this field:
- The starting point: the seller or producer is primarily liable for their goods, and an influencer is not an absolute guarantor of everything they promote.
- However: the influencer's personal liability arises where they are at fault, and fault here takes clear forms.
- False claims: attributing untrue properties to a product, such as claiming a preparation cures an illness or that a device is officially approved without basis.
- Fabricated experience: presenting results that did not occur or edited images suggesting an effect that is not real.
- Promoting the unlicensed: advertising medical or cosmetic preparations, unlicensed services, or a non-existent entity, the gravest form as it may also give rise to criminal liability.
- Continuing after knowledge: leaving promotional content published after the influencer learns of serious complaints or harm strengthens the attribution of fault to them.
- Extent of influence: in assessing liability it is relevant that the audience contracted in reliance on their trust in the influencer, so greater influence calls for greater care.
The Advertiser's Liability
- Accuracy of information: the advertiser is responsible for the accuracy of the data, specifications, and claims supplied to the influencer.
- Product licensing: they must ensure their product or service is licensed and compliant before offering it for promotion.
- Recourse against the influencer: the advertiser may have recourse where the influencer departed from their instructions or added claims of their own.
- Consumer compensation: an affected consumer may sue whoever is shown to be at fault, the advertiser, the influencer, or both.
The Campaign Agreement
- Scope of services: the number and type of posts, how long they remain, and the platforms, as vagueness here is the leading cause of dispute.
- Content and approval: who writes the copy, who approves it before publication, and the limits of what the influencer may say of their own.
- Representations: the advertiser's confirmation that the product is licensed and the data accurate, a decisive clause protecting the influencer.
- Mutual indemnity: allocating claims arising from each party's breach of its obligations.
- Intellectual property: ownership of the filmed content and the advertiser's right to reuse it and for how long.
- Termination: each party's right to end the campaign and remove content where a problem emerges, and the treatment of the fee.
- Confidentiality and exclusivity: restricting promotion of competitors for a defined period where agreed, with its scope precisely defined.
Practical Guidance
- Influencers: do not promote what you have not verified as licensed, particularly health and cosmetic preparations and financial services.
- Influencers: retain a copy of the agreement and the approval correspondence, which proves you relayed the advertiser's data rather than your own claims.
- Influencers: disclose advertising clearly, as disclosure protects you before it protects anyone else.
- Advertisers: do not release a campaign without approved written copy, as improvisation creates claims you cannot substantiate.
- Consumers: keep a screenshot of the promotional post, as later deletion is common.
- All parties: remove content immediately where a problem with the product is established, as continuing after knowledge reverses the position entirely.
Promotion is trust being sold, and a person who sells their trust before an audience assumes a measure of care for what they place before them. Yamnak Law Firm drafts advertising campaign agreements and regularises influencers' commercial status, and defends misleading advertising claims and contractual disputes between influencers and advertisers.
