hashtagWhat if the influencer you had been following on Instagram—an influencer whose style choices you admired, and who supported social causes that you believed in—turned out to be…a robot?

This is what happened to followers of Lil Miquela, a 19-year old model from California who launched an Instagram account in 2016.  For the past two years, she’s been posting photos of herself in designer clothing, eating at trendy restaurants, and pitching beauty products.  Along the way, she managed to amass over a million followers.  Then, in mid-April, after getting hacked by a fellow influencer named Bermuda who refused to return her account unless she “[told] the world the truth”— Miquela revealed that she wasn’t human.  She is a CGI creation.  And so is Bermuda.

CGI influencers like Miquela are attracting attention, and their numbers are expected to rise.  According to a recent article in Wired Magazine, there are already several startups working on commercializing “virtual” humans, and leaders in the influencer marketing industry predict that companies may begin creating their own CGI influencers simply because they are easier to control than human influencers.  The use of CGI influencers do raise some thorny questions, however.  Are they subject to the same regulations and guidelines that are applicable to human influencers?

The Federal Trade Commission has made clear that regardless of whether an influencer is a real person or computer-generated, the same disclosure rules apply.  According to an article by CNNMoney, a FTC spokesperson told the publication that “[t]he FTC doesn’t have specific guidance on CGI influencers, but advertisers using CGI influencer posts should ensure that the posts are clearly identifiable as advertising.”  This, of course, is a reference to the FTC’s “material connection disclosure” requirement—the requirement that influencers clearly and conspicuously disclose their relationship to the brand.  Although the FTC does not require any specific wording for this disclosure, they’ve previously recommended language such as “paid ad” and the hashtags “#ad” and “#sponsored.”  Some other options to consider are “#[Brand]Ambassador” and “#[Brand]Partner.”  Note that the FTC does not approve of the use of “partner” alone, but is ok with it if it’s used alongside the brand name in easy to read format with the brand name clearly set off from the disclosure term, such as by using capital letters or an underscore.  Also, the FTC has stated that saying “thanks” alone or “thanks [Brand] is insufficient, but you can thank the brand by including what was given such as “Thanks [Brand] for sending me product to try for free and for sponsoring my video.”

Another key requirement for testimonials is that the experience shown must be the true experience of the endorser.  Further, if there are performance claims made about an endorsed product, the results shown must be typical or the average expected results must be included.  So much focus in the influencer context to date has been around the material connection disclosure, that sometimes these other requirements get second billing.  Real questions exist as to whether any experience by a CGI influencer can be true.  Given they’re not real humans who can actually try on clothing, go on experiences or taste food, how authentic can their endorsements be, really?  Whether the FTC will see this as a real issue that could affect a consumer’s purchase decision, remains to be seen.  Certainly a clear disclosure that an influencer is computer-generated would most likely address the issue head-on.

Time will tell whether the FTC will update its business guidance with best practices specific to CGI influencers, but for now they should make best efforts to follow the guidelines that human influencers are subject to.  Presumably this shouldn’t be that hard, since they’re easier to control.  But one never knows…#Skynet