Legal guidance for SMEs when working with influencers
Using well-known personalities for marketing campaigns is potentially lucrative, but many businesses are unaware of the legal obligations involved.
Whether influencers promote a product as a one-off or are involved in a more extended campaign, business owners must ensure they are legally covered.
Lauren McKee, an e-commerce law expert for the new UK firm LegalVision, said: “From content ownership to misleading conduct, there are a host of factors to consider when working with influencers.
“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.”
Engagement conditions
When working with an influencer, it is important that you are specific about what services you are expecting from them.
The best way to do this is through a contract called an Influencer Agreement, which can cover:
What type of content you require the influencer to create;
How much content you would like the influencer to create and at what times, dates and where it should be published;
Whether you would like to approve their posts;
Whether their relationship with you is exclusive – e.g. if you are a skincare brand, that the influencer cannot work with any competing skincare brands;
What you are paying your influencer and your 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.
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.
The influencer owns whatever they create for your brand unless you have it assigned to you in your Influencer Agreement.
Your paperwork should clearly outline whether the influencer is transferring ownership of what they create to you 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.
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
Consumer protection and advertising laws prevent businesses from making false or misleading claims about products or services.
This includes situations where an influencer has not indicated that they are being paid to endorse a particular brand or product.
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.
They can disclose their relationship with you by labelling their social media posts with 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.
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.
