The legal pitfalls of non-organic follower growth on social media

Introduction

In the digital era, having a presence on social media platforms has become essential for many influencers and businesses. A high follower count can be perceived as a sign of quality and open the door for collaborations with brands. But follower numbers are not always the result of organic reach. Various methods of non-organic follower growth, such as buying followers or generating interactions through sweepstakes, carry legal risks. This article looks at the different forms of non-organic follower growth and the associated legal consequences, taking into account recent court rulings.

Purchased followers

Buying followers is a method that aims to increase reach on social media quickly and efficiently. But this practice is in a legal gray area. In particular, buying followers could be considered a misleading advertising practice if the purchased followers are represented as real people. This could constitute a violation of the Unfair Competition Act (UWG), in particular of Section 5 para. 1 sentence 2 no. 1 UWG, which prohibits misleading commercial actions. The legal assessment could be similar in that both fake reviews and purchased followers can create a false perception of the popularity or importance of an influencer or brand. In addition, the practice of buying followers could be a deception of consumers, which is prohibited under sec. 3 para. 1 UWG is considered unfair.

Case law in Germany has already addressed similar issues, particularly in the area of customer ratings. In a ruling by the German Federal Court of Justice, it was established that fake customer reviews can be misleading and therefore anti-competitive. Although there are no specific rulings on the purchase of social media followers to date, existing case law on fake customer reviews suggests that purchased followers could also be legally problematic.

In addition, purchased followers could also undermine the trust and credibility of influencers and brands. Consumers increasingly rely on the authenticity of social media personalities, and the discovery of follower purchase could lead to a loss of trust and, in the worst case, reputational damage.

There are also efforts at the European level to promote transparency in the digital space and combat misleading practices. Regulation (EU) 2019/1150 aims to ensure fairness and transparency for business users of online intermediary services. Although this regulation does not specifically target social media platforms, it reflects a general trend to regulate misleading online practices and promote transparency.

Buying followers thus remains a risky strategy that can have legal consequences. It is advisable to seek legal advice and consider alternative, authentic strategies to increase reach on social media.

Sweepstakes to increase the number of followers

Sweepstakes are a popular way to increase reach on social media. By making liking or following the account a condition of participation, influencers and brands can quickly increase their follower numbers. But this practice is increasingly viewed critically in legal terms. Similar to fake reviews, followers generated through sweepstakes could also be considered a misleading representation of actual popularity or approval. Here, too, a violation of § 5 para. 1 sentence 2 no. 1 UWG if the practice creates a false impression of the popularity of the influencer or the brand. In addition, sweepstakes used to generate followers could constitute deception of consumers, which is prohibited under sec. 3 para. 1 UWG is considered unfair.

The use of sweepstakes to increase follower numbers is a topic of legal interest not only in Germany, but also at the European level. The Unfair Commercial Practices Directive 2005/29/EC prohibits misleading and aggressive commercial practices, and followers generated by sweepstakes could be considered a misleading practice in certain circumstances.

Furthermore, various rulings by European courts have emphasized the importance of transparency and authenticity in online communications. Although these rulings do not specifically address sweepstakes, they do give an indication of how courts might view the issue of authenticity and misleading representation in digital communications.

There are also national judgments dealing with similar issues. For example, the Munich Regional Court has ruled that the use of fake customer reviews is misleading and constitutes a violation of the UWG. This case law could be applied to sweepstakes used to increase follower numbers.

The legal situation surrounding sweepstakes on social media is complex and constantly evolving. Paying attention to current case law and obtaining legal advice are therefore critical to minimizing the risk of litigation and potential penalties. It is essential to keep an eye on the legal situation and the relevant rulings in order to be on the safe side and avoid possible legal risks.

Other forms of non-organic growth and their legal assessment

In addition to buying followers and sweepstakes, there are other strategies to increase follower numbers, such as the “follow for follow” principle or “like for like” campaigns. These practices can also distort real-world popularity and approval ratings, creating a misleading narrative. The legal assessment could be similar to the methods previously discussed (see above) and could thus constitute a violation of the Unfair Competition Act, in particular of Section 5 para. 1 sentence 2 no. 1 UWG and § 3 para. 1 UWG.

The “consequences for consequences” and “like-for-like” practices could be seen as attempts to artificially increase the perception of popularity on social media. These methods can be seen as a form of sharing that undermines the organic reach and authenticity of the follower base. Such bartering can affect the quality of interactions and the credibility of influencers and brands on social media.

There are also efforts to strengthen the regulation of transparency on social networks to protect consumers from misleading practices. Although specific regulatory regimes may vary from country to country, it is likely that such practices may also come under greater regulatory scrutiny in the future.

Compliance with applicable laws and regulations is critical to maintaining integrity and credibility on social media and minimizing legal risks.

Create better contracts, pay attention to KPI!

Drafting influencer contracts is an art that feeds on the intersection of law, business strategy and the dynamic world of digital marketing. In my many years of practice as an attorney deeply involved in drafting and reviewing influencer contracts, I have gained deep insight into the essential components of such contracts that can protect both advertisers and influencers from undesirable consequences. A key theme running through my work and experience from numerous payment claims and consulting engagements is the need to include specific key performance indicators (KPIs) in contracts. These KPIs serve as an objective measure of the performance and success of an influencer campaign.

The issue of non-organic follower growth, as discussed above, underscores the importance of including relevant KPIs in influencer contracts. Simply focusing on follower numbers can be a deceptive metric and mislead parties. Rather, it is the appropriate selection of the influencer, the precise targeting and the activity of the influencer that are a supporting pillar for the success of a campaign. Bought followers can significantly distort these crucial parameters and thus reduce the effectiveness of the campaign.

When drafting influencer contracts, I strive to formulate a clear and unambiguous definition of the services expected and the goals to be achieved. The inclusion of specific KPIs, such as engagement rates, click-through rates, or qualified lead generation, promotes authenticity and transparency between parties. It creates a common ground of understanding and expectations that can prevent legal disputes later on.

Setting KPIs also fosters a culture of accountability and professionalism. It provides an objective assessment of campaign performance and gives parties the opportunity to adjust and optimize the campaign. This creates added value for both sides – advertisers get a better return on their investment, while influencers can strengthen their reputation and market position through successful campaigns.

The dynamic and complex nature of influencer marketing requires careful legal consideration to clearly define the rights and obligations of the parties and avoid potential liability pitfalls. Including relevant KPIs in influencer contracts is a crucial step in this direction. It reflects sound and forward-thinking contract practice aimed at creating a solid foundation for successful and legally secure influencer marketing campaigns. By integrating my extensive real-world experience into contract drafting, I always strive to create a win-win situation for advertisers and influencers based on transparency, trust and mutual benefit.

Conclusion

Authenticity Pays Off The legal landscape around non-organic follower growth is complex and can pose significant risks for influencers and businesses. A transparent and authentic social media presence is not only legally safer, but also creates a stronger and more lasting bond with the audience. Case law tends to reward authenticity and penalize misleading practices, as the judgments and standards discussed above demonstrate. It is advisable to seek legal advice to ensure that one’s social media practices are in compliance with applicable law and to minimize the risk of warning letters. A proactive approach that focuses on transparency and regulatory compliance can help gain audience trust and ensure long-term success on social media platforms.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.