Influencers, instagurus and enablers: using accessorial liability to establish a norm of behaviour in relation to disguised viral marketing

The nature of advertising is changing rapidly. With an interconnected world, online advertising has now become more prevalent, more valuable, and possibly more insidious than traditional forms of advertising. In this article, the authors consider the practice of "disguised marketing". This practice is often facilitated by people collectively known as "influencers" or "instagurus", and while the failure to identify a commercial connection between these persons and the goods or service can lead to harmful consumer outcomes, it is suggested that to establish a better norm of conduct, the regulator may well consider targeting the "enabler" of such information. This enabler, depending on the context, may be the search engine or social media site that allows the display of information to occur. When this targeting is combined with regulatory direction and primary liability as appropriate, the infrastructure necessary to achieve better consumer outcomes will be in place.