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

But Frankel, as she claims in the lawsuit filed in the US District Court for the Southern District of New York, said she never agreed to promote the knockoff cardigan. Instead, she said, a fraudster had taken an earlier video of her talking about another cardigan and edited it to make it look like she was endorsing the knockoff. According to the lawsuit, a summary of which was provided to The Washington Post, Frankel immediately posted a TikTok video alerting her followers to the fake ad and reported the ad through TikTok’s content flagging system. Within minutes, her video of the incident was removed for bullying.

Frankel is now seeking damages from TikTok for the damage the fake ad has caused to her brand and wants the company to agree to introduce better protections around a creator’s likeness.

“First and foremost, I want there to be a concrete change, whether it’s an act, a law, a process, a step, that protects content creators,” Frankel said in an interview. “TikTok needs to make an effort to protect creators and consumers. There are people who bought these products after they saw these ads with me in them.”

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

The use of video creators like Frankel to promote products on the Internet has become a big industry in recent years, and spending on influencer marketing is expected to reach about $16.4 billion by the end of this year, according to industry analysts Influencer Marketing Hub. This market is likely to grow at an annual rate of more than 33 percent between the years 2022 to 2030, according to Grand View Research, a business consulting firm.

But that growth has not been accompanied by similar developments in guidelines and rules about how influencers’ images can be used, and abuse, creators say, is common.

Influencers’ reputations are built on maintaining the trust of their followers. As more creators post content on TikTok, they say their videos are being used for spam ads that sell inferior products. These ads aren’t just a nuisance, creators said — they can have a big impact on a creator’s business.

Frankel said she was inundated with messages for days when the fake ad ran on TikTok. “People said, ‘I thought you sold out. You’re selling these bad products,” she said. “It is such a violation of me as a brand, a media figure. You can’t decide to just use me as an advertisement day in and day out.”

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

The spam ads can also have legal consequences for creators. Content creators often sign exclusive deals with brands in specific categories. An ad promoting a competitor’s product, even if their likeness was used illegally, could put them in breach of contract with a brand they signed a partnership agreement with, Flaherty said.

Curbing these fake ads has been a struggle for influencers and brands alike. In her lawsuit, Frankel is asking that TikTok create a way for influencers to flag unauthorized ads internally so they can be quickly removed.

A representative from Jenni Kayne, a clothing brand, said the company contacted TikTok in mid-September to report ads for a counterfeit product, with influencers including Frankel. Representatives from Jenni Kayne submitted a trademark certificate, links to the offending ads and screenshots of the third-party site, along with a formal report to TikTok. Still, the ads were not removed for at least 10 days, the company said.

“There were over 20 emails from us asking them,” said Alexa Ritacco, Jenni Kayne’s marketing manager. “It took TikTok so long to respond. It was so clear that they had no protocol for this. We were getting hundreds of direct messages every day about the fake ads.”

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

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

“I can’t believe I have to say this,” Lindsay Albanese, a TikTok creator and founder of the online marketplace TheFileist.com, said in a TikTok video to her 656,00 followers in late September. “But if you see an ad out there 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 flag the problem to TikTok were fruitless and that the fake ad was hurting her brand. “It’s so annoying,” she said on TikTok. “I don’t know if these products were ethically made, if this company followed labor laws and fair wages.”

Frankel’s suit alleges that TikTok has not mitigated these problems because it profits from sales made through false ads. The lawsuit alleges that TikTok generates revenue through ads and that fraudsters pay the company to run ads for their counterfeit goods, abusing influencers’ likenesses.

“Although the platform is not an e-commerce site, it facilitates and promotes the sale of products,” a summary of Frankel’s complaint states. “The marketing of products, especially counterfeit products, gets millions of views and encourages TikTok to increase their revenue streams by allowing the counterfeit products to be presented to users.”

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

Nash-Hahn said that from July 2021 through December 2021, TikTok received 49,821 global copyright takedown notices and processed 40,469, or 81.2 percent, of the takedown requests by removing infringing content.

In 2017, the Federal Trade Commission urged influencers to disclose partnerships, and platforms like Instagram and Twitter have since built tools to make partnerships between brands and creators more obvious to viewers. But because most influencer marketing deals are negotiated outside the purview of tech platforms, apps like TikTok may be unaware of which deals are fraudulent.

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

Frankel said much of this could be resolved if platforms like TikTok had a clearer way of resolving issues between brands and creators. Influencers, she said, should be able to work with the platforms to ensure they retain control of their image on the app, and brands should be able to flag fake ads or counterfeit products. “I want to be a voice for change in this room,” she said. “I have a platform, I have influence, and I want to make a difference on a larger scale.” She has created an email address for creators who have been similarly affected to join her suit.

There is agreement between two parties in Congress that something should be done. Wednesday introduced reps. Jan Schakowsky (D-Ill.) and Gus M. Bilirakis (R-Fla.) legislation to combat the sale of counterfeit products online. The Online Consumer Integrity, Notification and Fairness Act (INFORM Consumers) will require online platforms to collect, verify and disclose certain information from third-party sellers.

Jessica Rich, the former director of the Bureau of Consumer Protection at the FTC, 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 renew 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 content on their sites tells you that this issue is not adequately addressed under current law,” she said.