Pictured: Palm tree on a beach. Photo by Peter Hansen on Unsplash.

Teagan Sebba

The infamous “Fyre Festival” has sparked outrage again through the release of both a Netflix and a Hulu documentary that highlight the epic failure of Billy MacFarland’s fantasy festival in the Bahamas.[1]  The Fyre Festival would have been one of the first of its kind, as it promised huge headlining acts, luxury accommodations, and beautiful celebrity women, all in the picture perfect Bahamas.[2]  While music festivals usually attract customers with their musical acts, the Fyre Festival had a different overall strategy from inception.[3]  MacFarland wanted to promote the festival as a type of lifestyle, and he used some of the most popular celebrity supermodels to promote the festival from an early stage.[4]  Supermodels such as Bella Hadid, Emily Ratajkowski, Hailey Baldwin, and Kendall Jenner became the faces, and bodies, at the forefront of the operation.[5]  Not only were the models featured in a promotional video in which they danced and partied around an island, but in synchronicity, all of them posted a simple orange square on their Instagram grid captioned with text along the lines of, “Can’t wait to see you at Fyre Festival!”[6]  Only one model captioned “#ad,” but nowhere on the other models’ posts did it disclose that they were being paid upwards of $250,000 to post that orange square.[7] These orange squares were originally meant to promote the festival, but now they serve as an example for why the Federal Trade Commission (FTC) must update its guidelines to make them more relevant and specific to Instagram influencers. Although there were many other issues that caused the Fyre Festival to fail, clearer guidelines, at the very least, would have helped make consumers more aware.

Emily Ratajkowski has since received praise for being the only model to initially disclose her sponsorship deal with Fyre; however, hashtagging “ad” is not simply just the right thing to do.[8]  In fact, legally, all of the models might have needed to explicitly mention that they received money to promote the festival.[9]  The “Guide Concerning the Use of Endorsements and Testimonials in Advertising” (“The Guide”) is a set of general principles to evaluate any endorsement.[10]  In October 2009, the FTC updated its guidelines regarding endorsements to include the new and quickly evolving world of blogs and “word-of-mouth” marketers.[11]  The FTC has a Frequently Asked Questions page on which it details where “#Ad” must be placed in posts, what language endorsements should be in, and even how to adequately disclose an endorsement on Twitter while still maximizing character count.[12]  However, overall, the FTC outlines that disclosure needs to be “clear and conspicuous.”[13]  

The Guide itself, however, only states that it provides a basis for “voluntary compliance” and that practices inconsistent with the guidelines “may result in corrective action.”[14]  For Teen-Mom Farrah Abraham, corrective action did result; the FTC Associate Director of the Division of Advertising Practices sent a warning letter and requested a reply detailing how Abraham would become compliant.[15]  Ms. Abraham’s warning letter is one of three that the FTC publicly presents on its website.[16]  All three letters request a similar update on compliance; however, this ask is not enough. 

The Guide also includes a non-exhaustive twelve-page list of examples depicting an advertiser/consumer relationship and how to disclose its existence.[17]  However, none of the relationships come close to those of Instagram influencers, the brand paying for endorsement, and the influencers’ armies of followers.[18]  Instagram influencers’ power is based on a relationship with consumers that involves both a personal connection and a desire to emulate their lifestyle, which differs largely from the relationship bloggers or experts in a field may have with their followers.  Supermodel Chrissy Teigen praises social media constantly, claiming that it is the reason she exists.[19]  The ability for followers to become so close and intimately connected to their “ideal selves”—supermodels, fitness fanatics, and makeup moguls—presents a relationship entirely different from that of a blogger and closer to that of a trendy friend.[20]  But if your friend was being paid hundreds of thousands of dollars to tell you which lip gloss you need to buy, you would want to know, right?  

One would think so, and the FTC agrees; however, the Guidelines need to be more than “voluntary,” and the consequences must be more straightforward than “corrective action” that “may” result.  A recent study depicts the reality of these lax guidelines, citing that only twenty-five percent of Instagram influencers are compliant with FTC rules.[21]  On the other hand, the study also cites that seventy-one percent of Instagram influencers actually attempted to correctly disclose their relationships with the product they were sponsoring.[22]  These statistics can mean a few things, but it might mean that Instagram influencers have good intentions when it comes to disclosing their paid sponsorships.[23]  Perhaps influencers need more guidance, or more concrete consequences, to become fully compliant and to provide the modern consumer with the most transparent information available.[24]  

Enforcement could be difficult due to the sheer number of posts, resources available at the FTC, and overall familiarity of social media among leaders in the organization.  However, the FTC does not need to go after every violation to make a powerful impact on influencer culture.[25]  Perhaps targeting, following through, and forcing compliance from some of the most high-profile influencers would have a trickle-down effect to the rest. However, publicly targeting former fads such as teen-moms may not be the most effective public enforcement.[26] Perhaps even having an FTC presence on Instagram, with relevant information and a following, could help with compliance.

Overall, the Fyre Festival and Billy MacFarland have provided an important lesson for every social media user.[27]  While the supermodels who originally promoted the event cannot, and should not, possibly be blamed for the entirety of the fraudulent scheme that would eventually take place, they are an easy target for many to place their frustration due to their visibility.[28]  In a class-action lawsuit that individual festival attendees initiated, the supermodels are actually named as defendants, along with the festival organizers themselves.[29]  In an Instagram sea of Flat Tummy Teas and Sugar Bear Hair Gummies, the potential for legal consequences and the public awareness sparked by this action can help pave the way for a more transparent and informed influencer society.[30]  However, until this legal battle is resolved, the FTC must improve its guidelines to make them more specific and relatable to Instagram influencers, and maybe even post about them occasionally.[31]

[1] Fyre: The Greatest Party That Never Happened (Netflix 2019); Fyre Fraud (Hulu 2019).

[2] Anna Gaca, A Comprehensive Timeline of Fyre Festival’s Ongoing Disaster, SPIN(May 3, 2017), https://www.spin.com/2017/05/fyre-festival-disaster-timeline/.

[3] Id. 

[4] Id.

[5] Gabrielle Blustone, A Complete “S–t show,”VICE News (Apr. 29, 2017), https://news.vice.com/en_us/article/j5d944/rich-millennials-paid-thousands-for-ja-rules-fyre-fest-and-are-now-stranded-on-an-island-in-disaster-relief-tents.

[6] Id. (referencing the synchronized orange squares).

[7] Id. (highlighting that model and social media influencer, Emily Ratajkowski was the only model who disclosed on her post that the orange square was an advertisement).

[8] Id. (referencing Ratajkowski’s praise after the festival’s failure for disclosing her sponsorship).

[9] See id.

[10] 16 C.F.R. §255.0 (2018) (stating that the purpose of the Guide is to set forth general principles).

[11] FTC Publishes Final Guides Governing Endorsements, Testimonials, Fed. Trade Comm’n (Oct. 5, 2009), https://www.ftc.gov/news-events/press-releases/2009/10/ftc-publishes-final-guides-governing-endorsements-testimonials (defining word-of-mouth marketers as ordinary consumers who spread information about products to their own circles).

[12] Id. (detailing that “the words ‘Sponsored’ and ‘Promotion’ use only 9 characters. ‘Paid ad’ only uses 7 characters. Starting a tweet with “Ad:” or “#ad” – which takes only 3 characters – would likely be effective.”)

[13] Id. (explaining “clear and conspicuous” to mean that thedisclosure is closely related to the claim, in a font that is easy to read, and in a shade that stands out; for videos, the disclosure must remain on the screen long enough to be noticed, and if disclosed through audio, it must be read at a cadence that is easy to follow.)

[14] 16 C.F.R. §255(a) (laying out the consequences for non-compliance with the guidelines).

[15] Frequently Requested Records: Instagram Influencers, Fed. Trade Comm’n (Sept. 2017), https://www.ftc.gov/about-ftc/foia/frequently-requested-records/instagram-influencers (citing letters the FTC sent to individuals for non-compliance with the Guidelines).

[16] Id.

[17] 16 C.F.R. §§ 255.0-255.5 (detailing thirty-six examples of consumer/advertiser relationships).

[18] See id.(citing a lack of Instagram influencer examples).

[19] Gibson Johns, Chrissy Teigen: Social Media is “Why I Exist,” AOL.com (Nov. 30, 2018), https://www.aol.com/article/entertainment/2018/11/30/chrissy-teigen-twitter-why-i-exist/23605599/.

[20] Puranjay Singh, The Blogger’s Guide to Understanding the Psychology of Social Networks, Blogging Wizard, https://bloggingwizard.com/psychology-of-social-networks/ (last visited Feb. 19, 2019).

[21] Robert Williams, Study: Just 25% of Instagram Influencers are Compliant with FTC Rules, Mobile Marketer (Mar. 14, 2018) (citing a study by “Inkifi”).

[22] Id. (citing the overall number of influencers who attempted to disclose their sponsorship).

[23] Id.

[24] Id.(citing the statistics of compliance with FTC guidelines).

[26] Frequently Requested Records: Instagram Influencers, Fed. Trade Comm’n (Sept. 2017), https://www.ftc.gov/about-ftc/foia/frequently-requested-records/instagram-influencers (citing letters the FTC sent to individuals for non-compliance with the Guidelines).

[27] Blustone,supra note 5 (describing the overall horrors of the festival).

[28] Andrew Flanagan, A Second Lawsuit against Fyre Festival also Targets its “Tribe” of Influencers, NPR (May 3, 2017), https://www.npr.org/sections/therecord/2017/05/03/526758059/a-second-lawsuit-against-fyre-festival-also-targets-its-tribe-of-influencers.

[29] Id.

[30] Id.

[31] 16 C.F.R. §255 (a).

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