Fighting counterfeits on Amazon, Facebook, Instagram and Twitter: is it time for change?

Posted: 29/06/2018

In The Guardian’s recent investigation into counterfeits on Amazon, it reported that, in one order from the online retailer, a reporter was able to purchase fake Apple AirPods; genuine Apple iPhone chargers (which were sold as new but were in fact second-hand); counterfeit streetwear and accessories, including a Supreme/Louis Vuitton iPhone case and an Anti Social Club hoodie, and counterfeit Kylie Jenner lip gloss, manufactured by a Chinese company and almost indistinguishable from the real thing.

Amazon told The Guardian in a statement: “Amazon investigated and took action on 95 percent of all notices of potential infringement received from Brand Registry within eight hours. With our proactive innovations that learn from the information in Brand Registry, brands in Brand Registry on average are finding and reporting 99 percent fewer suspected infringements than before the launch of Brand Registry.”

The Guardian’s report came swiftly on the heels of the news that Martin Lewis, founder of MoneySavingExpert, is suing Facebook for displaying fake advertisements using his face. The fake adverts use Mr Lewis’s face without permission and urge users to invest in get-rich-quick schemes including cryptocurrency scams. Mr Lewis stated that people have handed over thousands of pounds in good faith, only to find that the advert has nothing to do with Mr Lewis or his company. These proceedings may result in Facebook being required to take further steps to stop fake advertisements appearing of their site.

In addition, concerns have been raised before Parliament about the sale of counterfeit Xanax through social media platforms, such as Twitter. One Labour MP stated: “I am very concerned that accounts are still being set up after being reported. I think social media companies need to take greater and swifter action to stop these dealers selling Xanax online.” Reportedly, Twitter failed to remove any of the 16 posts and pages reported until contacted for comment. In addition, Instagram only removed seven out of the 10 posts within two weeks of the posts being reported. Xanax's manufacturer Pfizer said anyone buying Xanax through social media platforms will be buying fakes.

So should Amazon and powerful social media companiesbe required to do more to tackle the rising tide of fakes?

At present, EU Regulation affords protection from liability to these types of platforms, where they do not have actual knowledge of unlawful activity occurring on their platform. This means that sites such as Amazon, Twitter, Facebook and Instagram only have to take down ads/posts/pages once they have been notified of an unlawful ad/post/page.

However, the rising demand on platforms to do more to stop counterfeits/infringements occurring of their platform signals that a change in the legal requirements on such platforms may be on its way.

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