Reviewing Social Media Influencer Contracts

30 Sep 2021

The last decade has seen a boom in social media use, globally, and now brand owners are looking to take advantage of the evolving marketing environment and promote their goods or services in the best ways they possibly can. In line with recent trends, many companies are choosing to utilise the services of online influencers.  

To ensure that rules, regulations, and the rights of all parties involved can be respected, it is important to make certain that both the business and the promoter enter commercial relationships with their eyes wide open. To do so, it is crucial that the parties enter an agreement that sets expectations for both sides and are aware that exceeding the terms stipulated in their contracts may leave them liable to legal action.  

So far, legal scholarship on social media influence has been focused primarily on political speech, fake news, and non-disclosure agreements, however, on a rapidly expanding online platform more areas are coming under scrutiny, which those that take advantage of the services must be aware about to protect themselves from litigation.  

Social media and changing regulations

Social media influencers can hugely benefit brand owners, whether it be more sales, views, etc. However, they also add additional risks. In 2020, there was a 55% increase in the number of formal complaints made against influencers. This lack of adherence to the guidelines inflates the risk profile for brands, making them vulnerable. Consequently, regulatory bodies are taking a more hardline approach and so responsibility is now being placed on companies shoulders to ensure that their influencers are behaving accordingly.  As a result, brands look to protect themselves by constructing complex contracts, to license the right of publicity.  

Social media contracts and considerations 

There are many considerations to bear in mind when forming said contract, many of which are often forgotten about. Therefore, it is favourable, and in a company’s best interest to have a solicitor review or compile a contract themselves. Specialist legal advice can help guarantee that a contract accurately outlines the dos and don’ts, whilst operating on social media. This is a top priority for both parties entering the agreement, with the need to comply with social media terms and conditions increasingly prevalent. Some criteria that is most relevant and needs complete, effective cover in a contract is references to:  

  • Intellectual property – If a brand is providing an influencer access to their intellectual property, this must be mentioned in the contract. This is because a formality, which is more often that not forgotten about, is that the brand should be giving the influencer an official licence, to use their IP. 
  • Deliverables – This refers to what the company wants the influencer to do. For example, this may set out, the number of posts, video length, platforms of use, time of posts, etc. It is crucial that this part of the contract is written with complete precision so that both parties can avoid a breach of contract. 
  • Standards – A contract, similarly to deliverables, should set out other expectations regarding the influencer’s behaviour. In doing so, companies can avoid attracting negative publicity for an influencer’s wrongful actions.  
  • Right to take down posts – It is likely that, at some point in these relationships, a brand may disagree with an influencer’s post. By setting out a right to take down posts, this can easily be prevented. 
  • Confidentiality – It is also paramount that a level of utmost secrecy is maintained, with regards to company information. This should be highlighted to social media influencers in a contract, to avoid unnecessary leaks that may affect their competitivity.  

How can we help you as a social media influencer? 

In March, research conducted by the Advertising Standards Authority (ASA) found that many online influencers were violating numerous UK advertising rules. These errors could be as minimal as failing to adequately disclose advertising content. Mistakes as seemingly harmless as using the wrong hashtag can make influencers less likely to be used by brands. Given the circumstances of non-compliance, the ASA intend to complete spot checks on content and strictly enforce rules. This will involve them working with the Competition and Markets Authority, meaning there is now much less room for error. Therefore, gaining a formidable understanding of how influencers must act online will be beneficial in conserving jobs and a continuous income. This can be defined in a properly written contract, specifically when emphasizing deliverables, standards, and confidentiality.  

With the market now contracting a variety of influencers, varying in significance (i.e., number of followers or views), some may be more accustomed to the business side of their position than others. It is common for less popular influencers to agree deals informally, perhaps through WhatsApp or Direct Message, which still constitutes towards a valid contract.  

Although, without giving the details of the deal any proper consideration, an influencer may enter a contract that does not respect their rights or benefit them. So, with the help of a solicitor, the weaker party can be protected. They can do this by protecting an individual’s rights and obtaining a valuable deal, whether with a brand, PR agency or when agreeing payments and transactions. Not only is it important to sign a clear contract, but it also needs to be the right type of contract. For example, many influencers become part of a barter business model, which presents features of an exchange contract but has different requirements. Thus, there are many factors that need to be appropriately recognized and dealt with, yet, with the right legal representation, social media influencers and companies can sign the best contract possible.