Influencer Marketing has become one of the most popular ways for marketers and their PR agencies to engage consumers — and also one of the most cost-effective.
As marketers continue to invest more in influencers, they expect more in return. This dynamic is changing the process of signing influential talent.
It’s easier than ever for marketers and their agencies to get caught up in the social media whirlwind. However, it is important for all parties involved to take a step back and understand the regulatory framework being implemented, as well as the importance of adopting robust contractual processes.
According to recent developments by the Federal Trade Commission (“FTC”), all stakeholders should keep these 9 best practices in mind:
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1. Identify the content of the influencer.
According to the most recent batch of FTC warning letters and the updated FAQ for its Confirmation Guide, some hashtags , such as #partner, #ambassador and #thanks without more context is not enough. Hashtags such as # Pay, #ad, and #sponsored are likely enough, as are organic disclosures that clearly describe the nature of the physical connection.
2. Keep the disclosures “above the fold.”
Make sure that disclosures are not buried at the bottom of text boxes or in hyperlinks. In particular, Instagram disclosures must be included in the first three lines of the post, above the “more” button. Disclose on Instagram or Snapchat Stories can be clearly superimposed on the post. Furthermore, do not allow influencers to rely on built-in platform disclosure tools. The FTC has advised that it does not believe that the integrated disclosures on Instagram, Facebook or YouTube are sufficient.
3. Consult with legal counsel to create a written policy for advocates to disclose their relationship to you.
Work with experienced legal counsel to develop a written policy that is clear instruct endorsers to disclose their affiliation when talking about a marketer’s product. The policy must also require influencers to provide their honest opinions on products and marketers, make only provable factual statements, and respect their intellectual property rights. third-party.
In addition, influencer agreements must now address unique issues — from regulatory compliance to multiple content types and associated production and ownership rights.
4. Understand who is signing the agreement.
Increasingly, deals are negotiated not with individual influencers but with networks of influencers on behalf of many influencers. Be aware that networks often try to avoid direct responsibility for influencer content. Influencers are new celebrities (and often act as their own producers), and negotiating these deals can require a lot of details like a talent or production deal. traditional celebrity, including SAG-AFTRA issues and other considerations.
5. Create and implement a social media policy.
Provide as much detail as possible about the content the influencer will create, including the format and length, and how the influencer is expected to promote it. PR agencies that enter into these agreements on behalf of marketers must be sure to provide influencers with a detailed brand guide or program summary that establishes key messaging requirements for the content. dung.
6. Establish specific principles of exclusivity.
When content is produced for only one marketer, be sure to create specific guidelines for exclusivity. For example, is an influencer allowed to offer their services to other brands, including related or competing brands, or to include or mention more than one brand in a single video? If not, be clear about the nature and duration of the restrictions.
7. Ensure that marketers have the ability to review and approve influencer content (and request modification).
Furthermore, consider whether the marketer wants to own the content. For one-off social media posts, a broad use license may be acceptable (and increasingly the industry standard). However, for a broader production campaign, content ownership may be more important. Don’t assume that today’s influencers will agree to hire.
No. 8. Contracts must require influencers to represent and guarantee that they will comply with all applicable laws.
Your contract must state that influencers must comply with applicable law, including FTC guidelines, and further that the content they provide will not infringe any third-party rights, including including copyright and the right of publicity.
Well-written agreements should include consequential provisions for breach of these obligations that encourage compliance by influencers (without causing them to leave the agreement).
9. Ensure construction complies with laws/regulations.
Ethical provisions and related provisions in influencer agreements are mission-critical. Influential celebrities with strong bargaining power are often resistant to agreeing to strong moral terms. However, it is more important than ever to push back.
While it was past industry standard that a marketer can only terminate a relationship if the influencer’s offensive activity occurs within the term of the engagement, marketers and their agencies should consider prompt negotiation for the right to terminate the influencer agreement if there are disclosures of violations committed by the influencer even before entering this influencer agreement.
At the end of the day, marketers and agencies must develop a blueprint for following influencers, along with a plan of action if they go rogue so marketers and agencies can take action. move quickly.
Regulators are monitoring the entire ecosystem of influencers — from marketers to publishers, PR agencies, and the influencers themselves. PR agencies are being informed and must act accordingly. Preparation is key.
Michael Lasky is a senior associate at the law firm of Davis & Gilbert, where he leads the PR practice team and co-chairs the litigation department. He can be reached at [email protected]. Paavana Kumar, a Davis & Gilbert associate specializing in social media and marketing law, supported this article. She can be reached at [email protected].