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Festivals, false advertising and the rise of social media influencers

01 July 2019

Trainee solicitor Hilda-Georgina Kwafo-Akoto discusses the role influencer marketing played in the promotion of Fyre Festival.

 

The 2019 season of summer festivals is here, with Glastonbury, Wireless in July and the maiden Afro Nation Festival in August.  In 2017 the infamous Fyre Festival was advertised as an idyllic island festival that would rival the annual Coachella Valley Music and Arts Festival, not in terms of scale but as the new festival experience of the social calendar. The "Coachella of the Caribbean" was to take place on Norman Cay, the island once owned by the notorious drug lord Pablo Escobar or so we were led to believe…

Fyre Festival has been the subject of documentaries produced by Hulu and Netflix. Whilst Fyre Festival has generated countless memes it has also had serious legal consequences and revealed the importance of making social media posts clearly identifiable as ads where appropriate.

Brand equity can be irrevocably harmed by scandals, litigation or custodial sentences for employees or directors. Fyre Festival was held to promote the launch of the talent booking app, Fyre Media but instead of creating momentum, the abject failure of Fyre Festival had the opposite effect and the Fyre Media app is now defunct. 

The rise of social media influencers

Fyre Festival was to take place over "two transformative weekends" in April and May of 2017. The proliferation of burnt orange tiles on Instagram became synonymous with a weekend of partying on yachts with supermodels, feeding wild pigs, and luxury villas. The influencer market is the new frontier of advertising with brands enlisting celebrities, and micro-influencers who have garnered at least 10,000 followers to endorse goods and services. Influencers receive benefits from brands for posts on their social media platforms. Endorsement deals can be particularly lucrative for the most popular influencers who can reach a specific demographic beyond the traditional advertising avenues of television, radio, newspapers, magazines and billboards.

The social media campaign  announcing Fyre Festival garnered 5.1 million views on YouTube and  featured models such as Bella Hadid, Chanel Imam and Hailey Bieber (née Baldwin). Court documents allege that IMG Models were paid $1.2 million to provide models for the promotional video.

Prima facie, recruiting models to promote a product in this case a music festival appears uncontroversial. Many will recall the glamourous social media posts of Bella Hadid, Elsa Hosk and Kendall Jenner tagging @fyrefestival. The appeal of influencer marketing for brands is that it is a subtle advertising strategy. The social media posts sharing the hashtag #fyrefestival did not make any reference to the commercial relationship between the models and the Fyre Festival, LLC and appeared to be independent/editorial content.

#ad

The importance of disclosing the commercial intent of a social media post is that it creates transparency, trust and accountability. Viewers being made aware that a post has been paid for to promote a product or service does not inevitably detract from the commercial appeal of an advertisement. It is immaterial whether out-of-pocket festival-goers would still have purchased ticket packages ranging from $1,200 to $100,000 if social media posts had made clear that supermodels had been paid to promote the festival. False advertising is an issue of consumer protection law and the misleading impression was given that supermodels would make an appearance on a picturesque cay in the Bahamas in the same way they document their attendance at Coachella on social media.

The UK advertising regulator, the Advertising Standards Agency (ASA) published guidance in September 2018 to better equip influencers and brands with an understanding of when a social media post would be classified as an ad and their responsibility to ensure it is correctly labelled. Brands and influencers who receive payment, gifts or free travel in exchange for social media posts are always expected to make it clear to consumers that they these posts are ads.

A lesson for festival organisers, marketing teams, influencers and brands

Invariably, Fyre Festival should have been postponed or even cancelled but the lack of festival insurance meant that co-founder Billy McFarland (Billy) would have been personally liable for repaying loans to investors. The co-founders of Fyre Festival, Billy and the rapper Ja Rule, tapped into the zeitgeist of the social media generation to weaponise the power of celebrity. Consumers and investors alike were misled by the promise of a festival of unparalleled luxury which Billy hailed as the "cultural experience of the decade".

Fyre Festival serves as an important lesson to festival organisers (and their marketing teams), influencers and brands at large. The content of promotional material should not be misleading as this could have the twin effect of captivating audiences and enticing investors based on a false premise. Influencers who fail to clearly declare the commercial intent of their social media posts could find themselves facing enforcement action from the ASA and required to remove a post for failing to use a clear and prominent identifier such as hashtag #ad.

 

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.

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About the author

Hilda-Georgina Kwafo-Akoto joined Bristows LLP in September 2017 as a trainee solicitor and currently sits in the Commercial Intellectual Property department. She is a regular contributor of blogs for The Lawyer Portal with a focus on the legal and commercial issues in the sport, fashion and music industries.

 

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