Influencer wars
Social media stars scrap it out online and in court
New Zealand’s social media world lit up this year when one of the country’s highestprofile ‘‘influencers’’, Simone Anderson, took legal action under the Harmful Digital Communications Act against fellow influencers Pebbles Hooper and Makaia Carr.
Anderson has more than 312,000 followers and, until that point, most of her disagreements seemed to have been thrashed out from behind the keyboard. There was a sense that it was all a bit like a court being asked to adjudicate on a high school argument.
‘‘That was not what the law was meant to be about,’’ one person posted on Twitter.
‘‘Makaia Carr? [What] has she done she’s so sweet,’’ tweeted another.
But Duncan Cotterill lawyer Jonathan Forsey said the act was increasingly being used as a ‘‘titfor-tat’’ response by influencers against those calling them out or making complaints about their behaviour online.
The act was passed in 2015, amid the Roast Busters scandal, to help people dealing with serious or repeated harmful digital communications.
Breaches of the act include false allegations, threats, harassment and encouraging anyone to send a message to an individual for the purpose of causing harm to that person.
Forsey said while the act overlapped with the Crimes Act and the Human Rights Act, it was a less expensive way to get something on social media removed, because it covered a broad range of breaches.
To make a claim under the act, the plaintiff first had to go to Netsafe to try to resolve the issue.
If that did not work, then Netsafe would provide a summary of facts and the matter could be taken to the district court for a take-down order.
Netsafe said an average of one in 40 reports resulted in summaries being issued.
Since July 2018, Netsafe had issued 189 summaries that could be used in court.
The district court could order the post to be taken down, or a retraction or apology. It could also make cease and desist orders, release the identity of a person behind an anonymous communication and order name suppression.
‘‘If these orders are ignored then people can be prosecuted and penalised. That’s what happened with Pebbles Hooper. [It] gets to the district court because there have been orders that have been ignored,’’ Forsey said.
Hooper has appeared in court this year for failing to comply with multiple interim orders, some dating back to October 2019, relating to posts she made about Anderson and motivational speaker Richie Hardcore over the past two years.
Hooper has been approached for comment.
Forsey said there appeared to be an echo chamber of people in the influencer industry taking online issues offline and, in some cases, to the courts.
This month Carr told her 55,000 Instagram followers she had reached a settlement with Anderson after spending $10,000 on legal fees over allegations relating to false claims.
Anderson was investigated by the Commerce Commission this year after being accused of falsely claiming to make donations to Women’s Refuge from the proceeds of the sale of her gifted clothes.
In a statement, Carr apologised for making comments about Anderson and race in the context of the Black Lives Matter movement and withdrew her accusations about Anderson.
‘‘In sum, Ms Anderson made charitable donations after I raised the donations issue online and the Commerce Commission received the complaint. I commend Ms Anderson for doing the right thing and making these donations,’’ Carr said.
Both Carr and Anderson did not respond when approached for comment.
Another influencer, Millie Elder-Holmes, then criticised Carr for settling.
Hooper, who had an ongoing legal battle with Anderson, defending charges related to the Harmful Digital Communications Act, also criticised Carr’s apology, albeit without naming her.
Authority PR director Golnaz Bassam-Tabar said influencers’ power was growing, and their followers often banded together in support of what they said, or whom they endorsed, without the full story.
Bassam-Tabar said ‘‘toxic culture’’ among influencers defaming one another under the guise of holding each other to account was also on the rise.
‘‘There are innuendos and watered-down accusations flying across social media. But the concern is that some are really damaging, serious accusations
‘‘There is no watchdog or mediation. People can call others out without recourse and it can be damaging.’’ Authority PR director Golnaz Bassam-Tabar
including sexual assault and racism,’’ Bassam-Tabar said.
She frequently helped individuals and businesses who had been the victim of ‘‘attacks’’ from influencers on social media. That sometimes involved pulling things from their past or taking comments out of context.
‘‘It’s on the rise, and it’s nasty. Social media has been great in holding politicians and corporates to account but the flipside is that we’re seeing people just being plain mean to each other.’’
In April, Elle + Riley Cashmere director Elle Pugh said she was forced to delete her Instagram post announcing that the business was reopening during the Covid-19 lockdown after suffering a backlash from influencers for being able to sell items deemed essential.
‘‘The messages we received were awful,’’ Pugh said.
Hooper also made a series of posts criticising Magnolia Bakery for operating as an essential service during lockdown.
The owner of that business, Bernadette Gee, said she received death threats and online abuse.
Gee said at the time that even though she received government approval as an essential business, people trolled her and accused her of ‘‘cheating the system’’.
Bassam-Tabar said companies needed to carefully consider which influencers they chose to work and associate with in their marketing strategies.
‘‘While brands are predominantly worried about an influencer they’ve chosen is being picked on, they need to look more closely about how their chosen influencer is talking about others and how they carry themselves as individuals and ambassadors of their own brand.’’
Media and defamation lawyer Robert Stewart said anyone who disseminates defamatory statements about a person to a third party, regardless of the medium the comments were published or broadcast on,can be liable for defamation.
‘‘It doesn’t matter that it’s on social media or that it’s been seen by one or two other people. The tort is complete once that publication occurs,’’ Stewart said.
A defamation occurs when someone publishes a false statement about another person, damaging their reputation.
Defences include that the statement being true, being honest opinion, was privileged, or the person had consented to it.
Stewart said people defaming others without naming them could still be found liable if the person concerned was identified by others.
In the social media context, when a person posts a defamatory statement, that person, and those who re-post or direct their followers to the defamatory post, can all be liable. If the person who administers the social media account knows about the post and fails to remove it within a reasonable time they will also become liable for the post.
In terms of damages that can be awarded, the quantum depends on an assessment of the harm caused depending on how many people saw that post.
‘‘The court will determine quantum based on how serious the defamation is and the extent of publication,’’ he said.
‘‘A social media post seen by 10 people won’t usually have the same quantum of damages as a story on the front page of a national newspaper or website.’’
Although users could report concerning posts to the social media companies, Bassam-Tabar said influencers would benefit from regulation to avoid bullying and defamation on the platforms.
‘‘There is no intermediary like with traditional media. There is no watchdog or mediation. People can call others out without recourse and it can be damaging,’’ she said.
Earlier this year the Advertising Standards Authority (ASA) introduced guidelines for influencer marketing following complaints over Anderson’s failure to clearly disclose that her posts included gifted items.
In September, ASA chief executive Hilary Souter said the authority recognised the need for strong guidance in the rapidly evolving space of Influencer advertising.