Authored By: Mbali Mchunu
Varsity College
Abstract
The South African legal framework aims to ensure consumer protection; however, the rise of social media influencers has exposed regulatory gaps, leaving influencer advertising practices insufficiently governed. This article examines the legal and regulatory frameworks applicable to influencer marketing in South Africa, with reference to the Consumer Protection Act (hereafter “CPA”), the Advertising Regulatory Board (hereafter “ARB”) Code of Advertising Practice, and the Electronic Communications and Transactions Act (hereafter “ECTA”).1It analyses the uncertain legal status of social media influencers, identifies deficiencies within the current legislative framework, and considers the adequacy of existing enforcement mechanisms. The article further explores the risks posed by misleading influencer advertising, with reference to influencer-related promotion scams such as the Alabuga employment scheme, and proposes potential regulatory reforms aimed at enhancing consumer protection.
- 1. Introduction
Marketing has evolved from traditional platforms such as newspapers, billboards, and television to digital advertising driven by social media influencers. Influencers function as contemporary product endorsers, offering instant reviews that shape consumer perceptions and purchasing decisions. Through curated online personas and large followings, influencers can affect consumer behaviour across sectors including travel, food, fashion, and employment opportunities.
However, the credibility of influencer advertising has increasingly been questioned, particularly considering scandals such as the Alabuga employment scam, which exposed individuals to serious harm through misleading online promotions.2 Such incidents highlight the vulnerability of consumers who rely on influencer endorsements that are often inadequately researched or motivated primarily by financial gain.
In South Africa, traditional advertising practices have rapidly shifted to digital platforms, with companies compensating influencers through payments or free products in exchange for promotional content. This development has created regulatory uncertainty, as influencers frequently perceive themselves as independent actors rather than extensions of the businesses they promote. South African legislation has not expressly contemplated the role of influencers, and there is currently no statutory definition of a ‘social media influencer’ within the CPA, ECTA, or the ARB Code.3
The absence of a clear legal classification for influencers has facilitated the spread of misinformation and deceptive advertising, particularly affecting vulnerable consumers. This has contributed to declining public trust, reputational harm to brands, and the proliferation of online scams. This article argues that the lack of a statutory definition of social media influencers, coupled with limited enforceable regulatory mechanisms, has enabled misleading influencer marketing practices, resulting in consumer harm and undermining the integrity of South Africa’s digital advertising environment.
1) Legal Framework
2.1) Definition of Influencers and Their Legal Status
Influencers are individuals with large followings on platforms such as TikTok, Instagram, and Facebook, who promote goods or services in exchange for free products or income.4 While South African law does not define “social media influencer,” certain statutory definitions may partially apply. For example, the CPA defines a ‘supplier’ as someone marketing goods or services, and ‘direct marketing’ as promoting goods or services electronically or otherwise.5 Influencers, however, typically act only as marketing agents, they do not produce or sell the products directly, creating legal ambiguity.6
Other countries have introduced clearer regulations such as France’s Law No. 2023-451 defines ‘commercial influence’ and prohibits certain promotions targeting minors, requires clear disclosure using words such as ‘collaboration’ or ‘advertisement,’ and establishes influencer liability.7In the United States, the Federal Trade Commission (hereafter “FTC”) Endorsement Guides require that paid endorsements be honest and not misleading, ensuring that consumers can rely on influencer claims.8 Hence, the FTC stands for fair and honest disclosure of information disclosed to consumers.
However, the legal status of an influencer may be undetermined this does not exempt them from legal compliance. This does not also imply that they are a part of the advertising companies they promote or that they are completely neutral entities when promoting online. Certain laws such as the ECTA, CPA, and ARB helps provide enforcement of complying with legislation towards ‘influencers.
2.2) Provisions Regulating Advertising in South Africa
The CPA protects consumers from unfair marketing by ensuring information is accurate, honest, and not misleading. It requires that goods and services be marketed responsibly, prohibiting false claims regarding pricing, advantages, production, or sponsorship.9 Furthermore, the CPA reinforces this by prohibiting conduct that is directly or indirectly misleading, including actions by individuals promoting on behalf of a business.10
The CPA specifically prohibits marketing that exploits consumers through false statements. This section could, apply to influencers who promote exaggerated products or offers to vulnerable audiences via paid promotions, highlighting a potential legal avenue to hold them accountable.11 However, the truth remains as the law is still lacking a definition of an influencer.12
of Public Sociology and Sociotherapy 21–31 <https://www.researchgate.net/publication/359021505_Social_Media_Influencers_the_New_Advertising_Agen cy> accessed 8 December 2025.
The ECTA further regulates online commercial activity, which would include most influencer promotions conducted electronically.13 This is seen in online platforms such as TikTok, Instagram, and Facebook which includes a ‘#’ and wording for a paid promotion. The ECTA prohibits the falsification of information displayed through online or electronic transactions by the supplier. This includes emails and social media posts. Any information presented by a creator for the purpose of promoting a product or service must be clear, legible, and truthful..14 This provision could arguably extend to influencer marketing, creating accountability for misleading promotions.15 The ECTA , further regulates the deceptive representation about goods or services online.16 This includes exaggerated claims made online by influencers aimed at trapping consumers.17 This section could arguably be the most relevant towards influencers and their advertising.18
Lastly, the ARB Code provides voluntary guidance on disclosure and responsible marketing, though it is not legally enforceable against non-members.19 The ARB Social media code requires that any sponsored content like adverts posted on social media must be clearly identified or stated to be ‘sponsored’, ‘Ads’ or ‘promoted’.20 This can then force influencer to disclosures and transparency obligations towards especially if it is a paid sponsorship.21 However, the code may not binding it does provide ethical influencer conduct which could help support accountability towards influencers and provide them with protection.22 The void of legality towards the SA influencer market is significant, the issue of scams and false information is still rampant.
2.3) Distinction between advertisers and influencers
Advertisers in SA are regulated by the traditional pillars of legislation being the CPA, ECTA, and POPIA This creates regulation, accountability, and enforceability in a way that is just and fair and protects the consumer. Advertising agencies are registered entities according to the Companies Act 71 of 2008, they are registered and incorporated under the Companies and Intellectual Property Commission (hereafter “CIPC”).23 Advertising firms hold legal status and are subject to the ARB, CPA and liabilities towards clients or customers such as contractual obligations they can be held accountable and fined.24
‘Influencers’ tend to be natural individuals, that are usually unregistered in organisations such as the ARB and do not fall under any company but only serve a legal duty towards their contracts with companies often in paid partnerships, Ads, or sponsorships.25 Influencers are independent individuals and only paid per post but not bound to advertising contracts, they see themselves as informal content creators and not fully fledged advertisers bound legally.26 Influencers social accounts are curated to be personal and self-opinionated rather than commercial advertising. This allows Influencers to operate across multiple jurisdictions as natural persons and have a distance from responsibilities often associated with advertisers. This includes legal responsibilities, compliance to certain laws, duties in registration, mergers and acquisitions that contrast them starkly to legal persons.27
This results in legal consequences because of the void in legislation. The CPA and ECTA assumes the relationship of supplier of a good or service to be exchanged to a consumer, through acts of persuasion to convince them to spend their money.28 Influencers on the other hand sit in the legal ‘grey zone’, as they can offer a review out of good consciousness and not as an attempt to secure a funding contract from a company. Often influencers are considered marketing agents as they act as a third par in the supplier consumer relationship. An influencer is not accountable for their misleading content but rather the brand they’ve altered information about is held accountable.
The absence of a legal recognition for influencers enables the dysfunctional behaviour of misinformation to be practiced by influencers. The spread of lack of consumer trust, increase in online scams, and false promotions. The lack of Judicial scrutiny towards South Africa’s social media economy entrenches the problems present this requires clear legal reform and regulatory tightening.
2) Judicial Interpretation
3.1) SA case law on False advertising
False advertising in SA is met with heavy criticism and a stern response from legislation resulting to fines, reputational loss and sometimes shutdowns of whole organisations. However, with the dawn of influencers the rules are yet to apply, as it seems that they can get away with accountability due to the vacuum in legislation that could regulate them. Examples of SA case law includes the controversial Baba and Others v Clicks Group Limited and Another (hereafter “Clicks case”), which showcased an advertisement released by pharmaceutical and lifestyle company ‘Clicks’ depicted negative terms towards black women’s hair as “frizzy and dull” insinuating that black women’s hair was inferior to white women’s hair which was shown as normal. The matter does heavily concern the rights of equality and dignity meant to be upheld, it also illustrates the commercial, social impacts of accountability on advertising content produced by corporate giants like Clicks and their commercial social impact.29
The scrutiny of advertising on retailers in South Africa is intense and exclusive. The courts ruling for the Clicks case identifies that although it was released in a day and age of digital amplification the laws remains.30 Given this fact and the growing promotional activities made by influencers in the modern advertising environment consideration for influencers responsibility or role for spreading commercial content online is omitted. This allows for claims that are false and consequences to be absorbed by consumers and absolved by influencers. The SA courts have yet to interrogate influencers in the context of a legislation that lacks structural limitations and vacuums towards them, however certain foreign courts have encountered and assembled precedents surrounding the existence of influencers.
3.2) Foreign Judicial Approaches to Misleading Digital Advertising
Foreign jurisdictions have actively addressed misleading digital advertising, offering instructive guidance for South Africa. In the United Kingdom, the Advertising Standards Authority (ASA) ruled against influencer Molly-Mae Hague, who failed to clearly disclose a promotional giveaway of luxury goods.31 The ASA confirmed that undisclosed sponsored content constitutes a breach of advertising standards, demonstrating the principle that transparency is essential in influencer marketing.
Similarly, in the United States, Federal Trade Commission v LeanSpa LLC established that online endorsements must not be deceptive.32 Although the case did not involve social media influencers directly, the court held that digital promoters can be held accountable for misleading content, even when disseminated through third-party affiliates or online platforms.
These foreign rulings illustrate that courts are willing to extend traditional advertising principles to new digital marketing contexts. Applying these principles to South Africa suggests that influencers could theoretically be held liable under existing statutes, such as Sections 29, 41, and 42 of the Consumer Protection Act, and Sections 43 and 45 of the Electronic Communications and Transactions Act.33 However, no South African court has yet considered influencer accountability, leaving the legal application largely theoretical and reinforcing the regulatory vacuum in which misleading influencer marketing currently operates.
3) Critical analysis
4.1) Regulatory loopholes and practical challenges
It is no myth that SA statutory and judicial bodies do not have a definition for what an influencer is however that doesn’t mean these persons aren’t bound to any legal consequences. Current laws such as the CPA sections 29,41, 42 and the ECTA sections 43, 45 exist in place and can cover in areas where the law lacks in terms of influencers. Furthermore, the ARB Code provide voluntary guidance, which means that influencers are still in the grey and unlike recognise advertising agencies they slip through the cracks of accountability.
Challenges such as economic climate encourages influencer behaviours such as posting to gain an income, gaining a future sponsorship or losing visibility.34 This creates panic within the influencer and accelerates actions like posting misleading information and further eyeballs the lack of formal accountability.35 Due to influencers being independent this means that the brands they work with don’t monitor their compliance. This creates far reaching and disproportionate misleading campaign done by the influencer and targets vulnerable, unknowing consumers who put their trust in the influencers review.36 This deepens due to the hollow space for legislative precedent and enforcement. The gaps in law coupled with realities of the presence of influencers create a slip and slide for risk that will ultimately be faced by the consumer.
This can be seen in the “Alabuga Russia Job Scam” and the aim for Russia to recruit young South African women aged 18 – 22 promising work opportunities.37 Social media influencers were paid a fee to create a post about the programme to target the vulnerable and devastatingly unemployed youth in South Africa.38 This caused many influencers to their credibility and key forms of making money once the public pieced together the scam.39
The combined effect of legal ambiguity and enforcement challenges has contributed to the growth of misleading promotions and online scams in South Africa’s social media economy. Without clear accountability mechanisms, influencers can spread dangerous false claims with little fear of legal repercussion, undermining consumer trust and weakening the integrity of digital advertising.
4.2) Proposed reforms
For the legislative ecosystem to finally hold influencers accountable it would need to define what a social media “influencer” is within the CPA as previously identified.40 Furthermore, the ECTA and CPA should engage in policing misleading promotions created by the influencer so that they may face comparable consequences with traditional advertisers.41 This may be introduced as an amendment to the act and thus formally recognise influencers. Although the ARB provides a branch in regulating influencer discloser it is however a voluntary approach this should be codified to hold influencers accountable.42 Finally, public education aimed at boosting consumer awareness to influencers digital advertisement risks through their posts and reviews should be given by digital platforms, and consumer protection regulators.
1) Conclusion
In conclusion, influencer marketing has become a notable feature in SA’s digital landscape, yet it exists and is barley considered by legislative framework as it is yet to cause some significant recognition. While the CPA and ECTA only provide general recognition of compliance with upright behaviour towards traditional advertising, its application remains uncertain towards social media influencers. The absence of a judicial definition for influencer and any legislative precedent emphasises the weak areas within South Africa’s law as influencers are without legal accountability and consumers are exposed to excess harm.
This article has illustrated that although legal application can be conducted towards influencers certain limits remain. Comparative approaches result from foreign jurisdictions compares influencers accountability to be the same as any other advertiser. Without targeted reform, the undermining of consumer trust, and social media economies integrity will continue to spread until the legal recognition of influencers can create mandatory disclosures and mechanisms for enforcing truthful marketing by social media influencers as their responsibilities and obligations can finally become realised.
Bibliography
Table of Legislation
Statutes
- Consumer Protection Act 68 of 2008, https://www.gov.za/sites/default/files/gcis_document/201409/321864670.pdf > Accessed 10 December 2025.
- Electronic Communications and Transactions Act 25 of 2002. https://www.gov.za/sites/default/files/gcis_document/201409/a25-02.pdf > Accessed 10 December 2025.
Foreign Legislation
- Law No 2023-451 of 9 June 2023 on regulating commercial influence and combating the excesses of influencers on social networks (France) <https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000047663185 >Accessed 9 December 2025.
Table of case law
- Baba and Others v Clicks Group Limited and Another (EC 12/2020) [2022] ZAWCHC 32 (28 February 2022). https://www.saflii.org/za/cases/ZAWCHC/2022/32.html > Accessed 10 December 2025.
Table of regulatory and self-regulatory decisions
- Advertising Regulatory Board, The Codes (ARB) Advertising Regulatory Board, The Codes (ARB) https://www.arb.org.za/The_Codes/> Accessed 12 December 2025 • Advertising Regulatory Board, Appendix K: Social Media Code of the Code of Advertising Practice (ARB 2023)< https://www.arb.org.za/code-file downloads/lappendix-k_social-media.pdf > accessed 12 December.
- Advertising Standards Authority, Molly-Mae Hague t/a mollymaehague (ASA ruling, 2020) <https://www.asa.org.uk/rulings/molly-mae-hague-g20-1078674-molly-mae hague.html\> accessed 12 December 2025.
Secondary Sources
Journal articles
- Brooke Erin Duffy, ‘Social Media Influence’ (2020) 19 International Journal of Communication <https://www.researchgate.net/publication/342800736_Social_Media_Influencers> Accessed 8 December 2025.
- Stevenson S, Hack-Polay D and Tehseen S, ‘Social Media Influencers, the New Advertising Agency? Examining the Impact of “Social Media Influencer” Marketing on the Cosmetics Industry’ (2022) 2(1) International Journal of Public Sociology and Sociotherapy 21–31 <https://www.researchgate.net/publication/359021505_Social_Media_Influencers_the _New_Advertising_Agency> accessed 8 December 2025.
Website Articles
- Ed Habershon, ‘“My Skin Was Peeling”: The African Women Tricked into Making Russian Drones’ BBC News (5 November 2025) <https://www.bbc.com/news/articles/cdrzdpre058o> accessed 8 December 2025. • Michael Andisile Mayalo, “The urgent need for regulation in South Africa’s digital media landscape” Daily News, (28 August 2025). <https://dailynews.co.za/2025-08-28-the-urgent-need-for-regulation-in-south africas-digital-media-landscape/> Accessed 12 December 2025.
- Simon Majadibodu, “SA government warns young women against alleged Russian job scams on social media” IOL, (25 August 2025) <https://iol.co.za/news/south-africa/2025-08-25-sa-government-warns-young-women against-alleged-russian-job-scams-on-social-media/> Accessed 12 December 2025.
1 Consumer Protection Act 68 of 2008 (CPA); Advertising Regulatory Board, Code of Advertising Practice; Electronic Communications and Transactions Act 25 of 2002 (ECTA).
2 Ed Habershon, ‘“My Skin Was Peeling”: The African Women Tricked into Making Russian Drones’ BBC News (5 November 2025) <https://www.bbc.com/news/articles/cdrzdpre058o> accessed 8 December 2025.
3 CPA; ECTA; ARB Code (2023).
4Brooke Erin Duffy, ‘Social Media Influence’ (2020) 19 International Journal of Communication <https://www.researchgate.net/publication/342800736_Social_Media_Influencers> Accessed 8 December 2025.
5 Consumer Protection Act 2008 s1.
6 Stevenson S, Hack-Polay D and Tehseen S, ‘Social Media Influencers, the New Advertising Agency? Examining the Impact of “Social Media Influencer” Marketing on the Cosmetics Industry’ (2022) 2(1) International Journal
7 Law No 2023-451 of 9 Junne 2023 on regulating commercial influence and combating the excesses of influencers on social networks (France) <https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000047663185>Accessed 9 December 2025.
8 Federal Trade Commission, Guides Concerning the Use of Endorsements and Testimonials in Advertising (2009).
9 Consumer Protection Act 68 of 2008 s 29.
10 CPA s 41.
11 CPA s 42.
12 CPA s 1.
13 ECTA s1.
14 ECTA s 43.
15 Ibid.
16 ECTA s 45.
17 Ibid.
18 Ibid.
19 Advertising Regulatory Board, Appendix K: Social Media Code of the Code of Advertising Practice (ARB 2023) <https://www.arb.org.za/code-file-downloads/lappendix-k_social-media.pdf> accessed 12 December 2025.
20 Advertising Regulatory Board, The Codes (ARB) Advertising Regulatory Board, The Codes (ARB) https://www.arb.org.za/The_Codes/> Accessed 12 December 2025.
21 Ibid.
22 Ibid.
23 Companies Act 71 of 2008 ss 1,13,14, and 19; Companies and Intellectual Property Commission (CIPC), Practice Note on Company Registration (CIPC, 2021) https://www.cipc.co.za accessed 14 December 2025.
24 Consumer Protection Act 68 of 2008 s 19, Advertising Regulatory Board, Code of Advertising Practice (ARB 2023).
25 ARB Code (2023).
26 CPA s1; ECTA s1.
27 Ibid.
28 Ibid.
29 Baba and Others v Clicks Group Limited and Another [2022] ZAWCHC 32 (EC) <https://www.saflii.org/za/cases/ZAWCHC/2022/32.html> accessed 14 December 2025.
30 Baba (n1).
31 Advertising Standards Authority, ASA Ruling on Molly-Mae Hague t/a mollymaehague <https://www.asa.org.uk/rulings/molly-mae-hague-g20-1078674-molly-mae hague.html#:~:text=The%20ASA%20found%20that%20the%20promotion%20was,under%20the%20supervisio n%20of%20an%20independent%20person> Accessed 12 December 2025.
32 United States District Court for the District of Connecticut, “Federal Trade Commission v. LeanSpa” (2015). Historical and Topical Legal Documents. 942. <https://digitalcommons.law.scu.edu/historical/942/> Accessed 11 December 2025.
33 CPA ss 29, 41, 42; ECTA ss 43, 45.
34 Michael Andisile Mayalo, “The urgent need for regulation in South Africa’s digital media landscape” Daily News, (28 August 2025) <https://dailynews.co.za/2025-08-28-the-urgent-need-for-regulation-in-south-africas-digital-media landscape/> Accessed 12 December 2025.
35 Mayalo (n1).
36 Mayalo (n1).
37 Simon Majadibodu, “SA government warns young women against alleged Russian job scams on social media” IOL, (25 August 2025) <https://iol.co.za/news/south-africa/2025-08-25-sa-government-warns-young-women-against-alleged-russian job-scams-on-social-media/> Accessed 12 December 2025.
38 Majadibodu (n1).
39 Majadibodu (n1).
40 CPA.
41 ECTA; Ibid.
42 ARB (2023).
