Guest post by Niamh Herlihy

Influencer Law Clinic series

12/18/20203 min read

Instagram is constantly changing to the dismay of the influencers whose income is sourced from ad revenue and through marketing brands on the platform. Brands ask an influencer for their ‘statistics’ in order to decide to use them to promote their product, high engagement (likes, comments, follows) correlates with the idea that a post reaches a broader audience. The app created an algorithm that changed the way a user sees their posts, instead of a normal chronological order, Instagram now anticipates what you want to see.[1]

Brands, influencers, and regular private users constantly seek ways to hack the algorithm. Instagram Pods may be the answer.When someone opens the app, you want your post to be the first one there. The more engagement with your content, the more likely it will be pushed to the top. The pods, also known as an engagement pod, feed into this idea: a group of users, normally influencers, arrange to interact with each other’s content.[2] The pod may have certain rules like one must engage with a post within an hour of publishing, or the content you curate is restricted to certain themes. The groups are sophisticatedly structured. Small groups with 20-30 members are available; search for any Love Island star on Instagram and see all their fellow contestants with fire emojis under their posts. Groups with over 1000 people have also been made and are quite easy to join. They use automated features like bots to ensure no one in the group leeches off each other and everyone is held accountable for engaging with each other’s content.[3] The question is why be involved in a pod? By using a pod, normally one’s own engagement and follower count go up, making them more attractive to advertisers. Brands want high engagement as this may mean that more users will see their product and purchase it. The use of the pod pushes one’s engagement statistics up; the post is pushed to the top of the followers feed as the app believes it is popular content.[4]

From a legal perspective, many questions arrive, one of them being whether it is an unfair business practice due to the deceitful nature. However, another pivotal question is whether a cartel in competition law has been created. The EU law definition can be discussed; a cartel is a series of undertakings who make an anticompetitive agreement like altering market share which they profit from.[5] This prevents direct competition with one another as they now must behave according to the agreement which may affect consumers opportunities in the market.Influencers can be seen as undertakings as a result of the ad revenue they receive from their posts have created an agreement that changes how content is seen on Instagram.[6] Essentially, the influencers have altered the market. This affects other creators not in the pod as their content is pushed to the bottom of the feed due to less engagement. Additionally, the standard of the content may be decreased. There is less incentive to create high-quality content if your post will trend quickly and easily. On the other side, the influencers in the pod may reduce how much posts they produce and stop curating good content posts. This may dissuade brands from interacting with influencers who are in this position as a result of the agreement. Finally, with the increased engagement, brands will happily contract with the influencers within the pods, the day-to-day users may see their Instagram feed become a shopping catalogue due to a rise in #ad.Users contact with the app is disrupted as there is now a false narrative from the distorted algorithm of what Instagram believes they want to see. The Instagram Pods beat the algorithm, but the Pods may be a modern synonym for cartels and could be breaking the law.


[1] Jill Warren, ‘This is How the Instagram Algorithm Works in 2021’ (Later, 17 November 2020) 19 November 2020.

[2] Kristen Dahlin, ‘Instagram Pods: Can Engagement Pods Beat the Algorithm?’ (tailwind blog, 19 June 2020) 19 November 2020.

[3] Emma Brown, ‘Do Instagram Pods Work? The Truth Behind Instagram’s Latest Engagement Hack’ (Hootsuite, 12 October 2018) 19 November 2020.

[4] Kristen Dahlin.

[5] European Commission, ‘ Cartels Overview’ accessed on 19 November 2020.

[6] Case C-41/90 Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] ECR I-01979