Bethenny Frankley, a former Real Housewife of New York, is suing TikTok

A prominent online influencer and reality TV star filed a lawsuit Thursday against TikTok, claiming the platform has failed to crack down on fraudulent ads using her videos to promote counterfeit products.

Bethenny Frankel, who has over 990,000 followers on TikTok and was featured on the Bravo TV series “The Real Housewives of New York,” says she was browsing TikTok on September 16 when many of her followers started asking about an ad they had seen featuring her promoting a cheap designer cardigan.

But Frankel, as she alleges in the lawsuit filed in the U.S. District Court for the Southern District of New York, said she never agreed to promote the counterfeit cardigan. Instead, she said, a scammer took a previous video in which she talked about a different cardigan and edited it to look like she approved of the counterfeit. According to the lawsuit, a summary of which was provided to The Washington Post, Frankel immediately posted a TikTok video alerting his followers to the false advertising and reported the ad through TikTok’s content reporting system. Within minutes, his video of the incident was removed for bullying.

Frankel is now seeking damages from TikTok for the damage the false advertising caused to its brand and wants the company to agree to institute better protections surrounding creator likeness.

“First and foremost, I want there to be tangible change, whether it’s an act, a law, a process, a step, that protects creators from content,” Frankel said in an interview. “An effort must be made by TikTok to protect creators and consumers. There are people who bought these products after seeing these ads with me in them. »

TikTok said it takes claims of copyright and intellectual property infringement very seriously and offers several portals on its website where users can report content that violates the platform’s guidelines. “We have strict policies to both protect people’s hard-earned intellectual property and prevent misleading content from TikTok,” said TikTok spokesperson Ashley Nash-Hahn. “We regularly review and improve our policies and processes to combat increasingly sophisticated fraud attempts and further strengthen our systems.”

Using video creators like Frankel to market products on the internet has become a major industry in recent years, and influencer marketing spending is expected to total around $16.4 billion by the end of this year, according to Influencer Marketing Hub industry analysts. This market is expected to grow at an annual rate of more than 33% between 2022 and 2030, according to Grand View Research, a business consulting firm.

But that growth hasn’t been matched by similar developments of guidelines and rules on how influencer images can be used, and abuse, creators say, is common.

The reputation of influencers relies on maintaining trust with their followers. As more creators post content on TikTok, they say their videos are being used for spammy ads peddling substandard products. These ads aren’t just a nuisance, the creators said — they can have major consequences for a creator’s business.

Frankel said she was inundated with messages for days when the fake ad ran on TikTok. “People were like, ‘I thought you sold. You are selling these wrong products,” she said. “It’s such a violation of me as a brand, a media figure. You can’t decide to just use me as publicity day after day.

Vanessa Flaherty, president of Digital Brand Architects, an influencer management firm and marketing agency, said such abuse can hurt a creator’s business. “A creator’s value lies in how they recommend the products and brands they support,” she said. “If this is taken out of context and applied to a brand they don’t have and may never want to endorse or support, it puts their credibility at risk.”

Spam can also have legal consequences for creators. Often, content creators sign exclusive deals with brands in specific categories. An advertisement promoting a competitor’s product, even if its likeness was used illegally, could put it out of business with a brand with which it has signed a partnership agreement, Flaherty said.

Removing these fake ads has been a struggle for influencers and brands. In his lawsuit, Frankel is asking TikTok to create a way for influencers to internally report unauthorized ads so they can be quickly removed.

A representative for Jenni Kayne, a clothing brand, said the company contacted TikTok in mid-September to report adverts for a counterfeit product, featuring influencers including Frankel. Representatives for Jenni Kayne submitted a trademark certificate, links to the offending ads and screenshots from the third-party site, and an official report to TikTok. Still, the ads weren’t removed for at least 10 days, the company said.

“It was over 20 emails of us begging them,” said Alexa Ritacco, Jenni Kayne’s chief marketing officer. “It took TikTok so long to respond. It was so clear that they had no protocol for it. We were getting hundreds of direct messages a day about infringing ads.”

“Users can report content within the app, and they can escalate concerns of copyright or trademark infringement through our website,” said Nash-Hahn, the TikTok spokesperson. . “Ad content goes through several levels of verification before receiving approval, and we have measures in place to detect and remove fraudulent or non-compliant ads.”

Still, some ads slip through the cracks, and creators have taken to TikTok themselves to try and get the message out to followers.

“I can’t believe I have to say this,” Lindsay Albanese, creator of TikTok and founder of online marketplace TheFileist.com, said in a TikTok video to her 656,000 followers in late September. “But if you see an ad where I’m trying to sell a bra, it’s a scam. They took my TikTok video…and edited it like I was talking about their bra.

She said attempts to report the issue to TikTok were unsuccessful and the false advertising was hurting her brand. “It’s so infuriating,” she said on TikTok. “I don’t know if these products were made ethically, if this company adhered to labor and fair wage laws.”

Frankel’s lawsuit alleges that TikTok has failed to mitigate these issues because it profits from sales made through the fake ads. The lawsuit claims that TikTok generates revenue from ads and that scammers pay the company to run ads for their counterfeit products, abusing influencer likenesses.

“Although the platform is not an e-commerce site, it facilitates and promotes the sale of products,” reads a summary of Frankel’s complaint. “The promotion of products, especially counterfeit products, garners millions of views and incentivizes TikTok to increase its revenue streams by allowing counterfeit products to be shown to users.”

“They’re using us to sell products, these counterfeit companies,” Albanese said. “It’s just going to get worse until social media platforms start cracking down fast. I should be able to email TikTok, say it’s not me, and have it removed immediately.

Nash-Hahn said that from July 2021 to December 2021, TikTok received 49,821 copyright takedown notices globally and successfully processed 40,469, or 81.2%, of takedown requests by removing the non-compliant content.

In 2017, the Federal Trade Commission urged influencers to disclose partnerships, and platforms such as Instagram and Twitter have since created tools to make partnerships between brands and creators more apparent to viewers. However, since most influencer marketing deals are negotiated outside the jurisdiction of tech platforms, apps like TikTok may not know which offers are fraudulent.

To make matters worse, some influencers fake sponsored content, promoting brands as if they have partnerships, to boost their image. Most brands accept free advertising, but many luxury brands do not.

Frankel said a lot of this problem could be solved if platforms like TikTok had a clearer way to resolve issues between brands and creators. Influencers, she said, should be able to work with platforms to ensure they maintain control of their image on the app, and brands should be able to report fraudulent ads or counterfeit products. “I want to be a voice for change in this space,” she said. “I have a platform, I have influence and I want to make a difference on a larger scale.” She set up an email address for designers who were similarly affected to join her costume.

There is bipartisan agreement in Congress that something needs to be done. On Wednesday, Reps. Jan Schakowsky (D-Ill.) and Gus M. Bilirakis (R-Fla.) introduced legislation to combat the sale of counterfeit products online. The Integrity, Notification and Fairness of Online Retail Marketplaces for Consumers (INFORM Consumers) Act would require online platforms to collect, verify and disclose certain information from third-party sellers.

Jessica Rich, former director of the FTC’s Consumer Protection Bureau, said lawmakers are increasingly interested in holding platforms accountable for the ads and content they host. She pointed to the INFORM Act and the movement to overhaul Section 230, the legal provision that protects websites from liability for what a third party posts. “The fact that you have so many proposals in Congress to hold platforms accountable for the content of their sites tells you that this issue is not being adequately addressed by current law,” she said.

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