A specialist ecommerce lawyer is warning firms to take care when employing influencers for marketing campaigns.
It comes as the Advertising Standards Agency (ASA) publishes a list of “non compliant” influencers, who have breached the CAP Code for routinely failing to disclose when they are advertising on their social channels.
Manchester-based Lauren McKee of LegalVision explained that businesses, particularly SMEs needed to consider the legal obligations of employing an influencer.
“From content ownership to misleading conduct, there are a host of factors to consider when working with influencers,” she said.
“It may seem complicated at the outset, but having the correct legal guidance in place will ensure any campaigns run smoothly and that all parties are protected.”
Influence Agreement
When bringing in an influencer, McKee said you needed to be “specific about what services you are expecting from them.”
That’s best done through an Influencer Agreement contract, which covers what type of content you need them to create; how much; when it needs to be published and where. You’ll also set out whether you need to approve posts and if any relationship with your brand is exclusive.
It’s here where you’ll also set out payment terms.
“Since any influencer you engage is going to be representing your brand and their activity will affect your reputation, it is also a good idea for your Influencer Agreement to include assurances about how they will represent you,” added McKee.
“This could include keeping their content tasteful, not copying content from others and agreeing to follow your reasonable instructions.”
Content ownership
“Complying with copyright laws is a vital aspect of influencer marketing. This protects the expression of ideas, including creative outputs on social media and other platforms,” explained McKee.
“The influencer owns whatever they create for your brand unless you have it assigned to you in your Influencer Agreement.”
She said that any paperwork should outline clearly whether ownership is being transferred to your company, or whether they are providing you with a licence to use their content.
“This will ensure you have permission to use it in your promotional material. You might also want to put limitations on the influencer’s future use of the content,” she continued.
Confidentiality
“It is likely you will need to share confidential information with your influencers. For example, if you are launching a new product you may share your marketing plans with them ahead of time so that they are ready for launch.
“Protecting such information is essential for your business and must be addressed in your agreement by way of a confidentiality undertaking by the influencer.”
Misleading conduct
In order to comply with consumer protection and advertising laws, a business – and therefore the influencer – can’t make false or misleading claims about a product or services.
“This includes situations where an influencer has not indicated that they are being paid to endorse a particular brand or product,” said McKey.
“Where you give an influencer any sort of benefit for endorsing your business or products, the influencer must disclose this to their audience.
“A ‘benefit’ not only includes a cash payment, but also includes other payments such as giving an influencer free products, gifts or holidays.”
This can be disclosed using hashtags such as “ad”, “advertisement” or “advertising feature”.
“Your Influencer Agreement should include a promise that they will comply with such consumer and advertising laws,” concluded McKey.
“It is important that you educate your influencers on best practice behaviour, so that your business is not implicated in any misleading conduct by the influencer. “
LegalVision launched in the UK last month, having been established in Australia and New Zealand for a decade. Its UK headquarters is in Manchester.
